Rothwell v Conservator of Flora and Fauna (Administrative Review) - [2024] ACAT 84

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ROTHWELL v CONSERVATOR OF FLORA AND FAUNA (Administrative Review) [2024] ACAT 84

AT 56/2024
Catchwords: ADMINISTRATIVE REVIEW – review of decision to deny application for tree removal under the Urban Forest Act 2023 – approval from Conservator required for “regulated” and “protected” trees under the new Act – whether criteria for approval of removal set out in schedule 1 of the Urban Forest (Approval Criteria) Determination 2023 (No 1) met – balancing the retention of mature trees to retain the urban canopy with safety concerns – reconsideration of decision under section 134 of the Act – criterion 1(1)(b), 1(1)(c), 1(1)(d), 1(1)(e) and 1(2)(a) considered – whether tree represents an unacceptable risk to public or private safety due to weight of pinecones – whether tree threatens substantial damage to a building, structure or service – whether tree in inappropriate location – whether tree casts excessive shadow over solar panels – whether any exceptional circumstances – pruning found to be sufficient mitigation of impact – original decision rejecting the application for removal affirmed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 22P, 26, 68, 69
Tree Protection Act 2005
Urban Forest Act 2023 ss 6, 9, 11, 20, 21, 22, 23, 99, 100, 132, 133, 134, Div 5.3

Subordinate

Legislation cited: AS 4373:2007 – Pruning of Amenity Trees
Urban Forest (Approval Criteria) Determination 2023 (No 1) sch 1

Cases cited:Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848
Egan v Conservator of Flora and Fauna (Administrative Review) [2016] ACAT 27
Isles & Nelissen [2022] FedCFamC1A 97

List of

Texts/Papers cited: Revised Explanatory Statement, Urban Forest Bill 2022

Tribunal:Member P Hatami

Date of Orders:  23 October 2024
Date of Reasons for Decision:      7 November 2024
Date of Publication:  14 November 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 56/2024

BETWEEN:

MICHAEL ROTHWELL
Applicant

AND:

CONSERVATOR OF FLORA AND FAUNA
Respondent

TRIBUNAL:Member P Hatami

DATE:23 October 2024

ORDER

The Tribunal orders that:

The decision under review is confirmed.
………………………………..

Member P Hatami

REASONS FOR DECISION

This application is about the removal of a cedrus deodara (Cedrus Deodara) tree located in the applicant’s backyard in Curtin. The tree is an evergreen conifer that is native to the Hindu Kush-Himalayan region across Afghanistan, Pakistan, India, and West Nepal into Tibet.[1] In its natural habitat, this species can grow up to 35 m in height and spread to about 20 m.[2] In its current habitat in Curtin ACT, it has grown over approximately 45–50 years into a healthy mature tree, approximately 14.6 m high, with a canopy of approximately 14–17 m, and an estimated trunk circumference of 216 cm at a height of 1.4 m.[3]
[1] Exhibit B – Risk Assessment, 3 October 2024, prepared by Michael Rothwell
[2] Applicant’s submissions dated 29 August 2024, page 32
[3] Statement of Richard Hart, 13 September 2024 at [10]
The tree trunk is about 5.7 m from the house. Its canopy overhangs the roof by approximately 3–5 m. It overhangs a deck access path to the back garden and partially overhangs a swimming pool.[4]
[4] Statement of Richard Hart, 13 September 2024 at [15]
The applicant, Mr Michael Rothwell, is the owner of the property in Curtin where the tree grows. The respondent is the ACT Conservator of Flora and Fauna (the Conservator). The tree is a “regulated tree” and “protected tree” under the new Urban Forest Act 2023 (the Act).[5] To remove the tree, the applicant must obtain approval from the respondent, as discussed below.[6]
[5] Act s 11
[6] Act ss 6, 9, 20; Urban Forest (Approval Criteria) Determination 2023 (No 1), sch 1
On 8 February 2024, Mr Rothwell applied to the respondent for approval to have the tree removed. The respondent’s decision in relation to this application gives rise to the current application for review before the Tribunal.

The Act

The Act came into effect on 1 January 2024. The objects of the Act are outlined in section 6 as:
(a)     to support a resilient and sustainable urban forest that contributes to community wellbeing in a changing climate; and
(b)     to protect and enhance the urban forest by recognising its value, including its cultural and heritage value; and
(c)     to contribute to biodiversity in urban areas; and
(d)     to support a target of the tree canopy covering 30% of the Territory’s urban areas.
The tree is protected under section 9 of the Act because it is a “regulated tree”. It is a “regulated tree” by virtue of its size and because it is not regarded as a pest specie or a registered tree under the Act:
11Meaning of regulated tree
(1)In this Act:
regulated tree means—
(a)a living tree on leased land that—
(i)is at least 8m high; or
(ii)has a canopy at least 8m wide; or
(iii)has 1 trunk that, 1.4m above natural ground level, has—
(A)a circumference of at least 1m; or
(B)a diameter of at least 318mm; or
(iv)has 2 or more trunks and, 1.4m above natural ground level, the average circumference of the trunks is at least 625mm, and—
(A)the sum of the circumferences of each trunk is at least 1m; or
(B)the sum of the diameters of each trunk is at least 318mm; or
(v)regardless of the size of the tree—has been planted for not more than 5 years—
(A)under a canopy contribution agreement; or
(B)in accordance with a tree protection condition of a development approval; or
(b)a dead native tree on leased land that, 1.4m above natural ground level, has a trunk with—
(i)a circumference of at least 1.88m; or
(ii)a diameter of at least 600mm.
(2)However, a tree is not a regulated tree if it is—
(a)a pest plant under the Pest Plants and Animals Act 2005; or
(b)a registered tree.
(3)In this section:
circumference of a trunk—
(a)includes bark that is intact but does not include vines; and
(b)is measured using a measuring tape wrapped around the tree meeting at 2 points.
native plant—see the Nature Conservation Act 2014, section 14.
native tree means a tree that is—
(a)a native plant; and
(b)at least 2m high.
To remove a regulated tree from private land, the leaseholder must apply for approval from the Conservator.[7] The Conservator, through its delegates, will assess the application, assess the tree, and may seek advice from the Tree Advisory Panel, before making a decision.[8]
[7] Act s 21
[8] Act ss 22, 23
Section 20 of the Act allows the Minister to determine “approval criteria” for tree damaging activities. The Minister has made such a determination pursuant to section 20, with the criteria contained in schedule 1 of the Urban Forest (Approval Criteria) Determination 2023 (No 1) (the Criteria), listed below:
Regulated Trees
1 Approval to damage a regulated tree
(1)The Conservator of Flora and Fauna (the Conservator) may give an approval to damage a regulated tree under section 28 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 causing excessive shading to the lessee’s residence, or neighbouring residence, during winter between the hours of 9am to 3pm and pruning is not sufficient to remedy this (excluding remnant eucalypts) and is supported by shadow diagrams; or
(f)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)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 in schedule 2, whether the tree has ecological importance to the local environment.
(3)In considering whether criteria (1) (b) or (c) are met the Conservator must assess whether the removal of the tree is urgently required in accordance with section 32 of the Act.
On 3 April 2024, a delegate of the respondent wrote to the applicant with a notice of decision. The respondent’s decision was to reject the application with the following recommendations:
(a) That the tree be assessed regularly by a qualified arborist (e.g. a minimum AQF Level 5 Arborist Qualification) to undertake a hazard and risk assessment every two to three years or when deterioration is noticed.
(b) That any epicormic growth is managed appropriately by a qualified arborist. Deadwood is to be removed, undertaken in accordance with Australian Standard 4373 - 2007, ‘Pruning of Amenity Trees’, [Minimum Industry Standards] MIS 308, Tree Pruning and the Urban Forest Act 2023.[9]

Objectives of the Act and mature trees

[9] Respondent’s Notice of Decision — Application to Undertake a Tree Activity dated 3 April 2024

The Act provides a framework for ensuring that trees that are removed are replaced to maintain the canopy following the tree removal. This framework ensures that the objects of the Act are maintained despite authorised tree removal.
The Revised Explanatory Statement to the Urban Forest Bill 2022 provides some context into the objectives of the Act as it relates to mature trees, providing some explanation as to why mature trees are regulated in this manner:
The updated definition of protected trees (Urban Forest Bill, section 9) will extend legal protections to an increased number of regulated trees (being trees which meet minimum size requirements on leased land) and to registered and remnant trees in future urban areas. This reform will provide greater legislative consistency in urban tree management, extend protections to the most valuable trees in future urban areas, and contribute to reducing the net loss of trees on leased land by enabling large trees to develop and encouraging tree retention.
Clause 11 Meaning of regulated tree
This clause defines the term regulated tree for the Act.
Protected trees include private trees (trees on leased land) that meet the specified size requirements of a regulated tree. This is to ensure protection of the next generation of mature trees by providing medium sized trees the opportunity to grow into large trees, and better aligns with other jurisdictions across Australia. The circumference measuring point of 1.4m above natural ground level aligns with diameter at breast height which is the industry standard. This is to create greater consistency across industry.[10] [Emphasis added]
[10] Revised Explanatory Statement, 30 March 2023, >
According to the explanatory statement, the Act seeks to promote the retention of mature trees to maintain the urban canopy. It purports that this approach is consistent with the ACT government’s aim to address climate change and promote the human right to life as well as align with the protection of mature trees in other jurisdictions.
The protection of ecosystems and ecological processes is deemed by the government to be a paramount obligation which is said to benefit the people of the ACT now and in the future:
The [Urban Forest] Bill is one action to secure a liveable and healthy future for the Canberra community and ensure people have access to an urban forest to support their health and wellbeing. It supports the ACT Government’s obligation to conserve urban forest resources, including its ecosystems and ecological processes, for the benefit of people in the ACT now and in the future. In doing so it ensures conservation is treated as an integral part of the planning and implementation of development activities. It also supports the Government to be able to assess proposed activities which may significantly affect the urban forest, establish adequate tree protection standards and monitor changes in - and publish - relevant data on the urban forest and canopy cover.
In promoting the right to life, the Bill supports the Government’s Climate Change Strategy and Urban Forest Strategy. [Emphasis added]

Application for reconsideration

On 4 April 2024, Mr Rothwell made an application for reconsideration of a decision under section 133 of the Act. In his application, he provided the following reasons for seeking approval to remove the tree:
Under Schedule 1 of the Tree Protection (approval Criteria) Determination 2006 (No 2), these are the reasons I believe the decision should be reconsidered:
1(1)(b) the tree represents an unacceptable risk to public or private safety. Cockatoos inhabit the tree over the summer months and knaw on the pine cones causing hundreds of them to fall from a great height. These present a catastrophic risk that a person may be killed if a pine cone hits someone on the head. It is not possible to avoid the confines of the tree as it inhabits a quarter of the block, overhangs the back deck, overhangs the pool and overhangs the roof. This risk is a risk that is carried by the home owner to ensure that the property is safe for visitors, not to mention the inhabitants.
1(1)(c) the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service. The tree constantly drops pine needles and with the addition of pine cones and small branches of the tree being dropped by cockatoos, the down pipes on the roof continuously get blocked. I regularly get on the roof to clean them out (a dangerous activity on its own and contributes to the safety risk in the point above), however heavy downfalls of rain that may come at short notice often mean that the down pipes do not cope with the water flow. During heavy rain in January and February 2024, the guttering and downpipes overflowed and we experienced flooding into a bedroom that covered half the floor resulting in destruction of the carpet and the water also ran under the wall and out to the adjacent dining room warping the floor boards because we could not keep up with the flooding.
1(1)(c) The tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service. The tree limbs overhang both our house and the adjacent houses car port. They are very long limbs and there are a real that in a very strong wind they may break and cause damage to both structures.[11]
1(1)(d) the location of the tree is inappropriate given its potential size and growth habit. The tree is already very large and dominates a quarter of the block. It is now about 12 meters height. Given its potential to grow to 30 meters and beyond, it is simply too large for the block.
1(1)(e) The tree is substantially affecting solar access to the lessees lease, or neighbouring lease, during winter between the hours of 9am to 3pm and pruning is not sufficient to remedy this. The tree does substantially block the sun in winter from sunrise until about 1pm. Pruning would not be sufficient to alleviate this unless the tree was taken back to the trunk only, which would defeat the purpose of retaining the tree.
1(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. Our block size is 841m2. Although the tree we are seeking removal of , a cedrus deodara, is not listed in Schedule 2, there are many trees in the schedule that are similar. Such as cupressus arizonica, cupressus glabra, cupressus macrocarpa and cupressus macrocarpa ‘horizontalis aurea’. Some of these tree species do not even grow as large as the cedrus deodora. The conservator may consider whether this particular tree is a problematic tree species for the purposes of criterion 1(2).[12]
The tree for which we are making application for removal is not listed in Schedule 3 as being a local ecologically beneficial species.
Major pruning of the tree will still not remove the risks and present issues associated with the first five bullet points.
This tree is severely affecting our enjoyment of our own property. It is not possible to prevent access to the tree without preventing access to the house. The mental anguish involved with the risk of pine cones falling and causing serious harm or even death, the blocking of the sun, the risk to the structure and integrity of our house, constantly cleaning gutters, cleaning the yellow pollen dust that covers everything, is most substantial.
We would be most happy to invest in mature trees that do not carry the same risks and issues associated with the cedrus deodora, to mitigate the removal of this tree. Whatever number of trees are required in that space, we would be most happy to oblige.
[11] The applicant has not relied on this criterion in his review application.
[12] This was a provision under the repealed Tree Protection Act 2005 and no longer a criterion for consideration of approval to remove a tree. The applicant did not press this issue at review before ACAT.
Before making a decision about an application for reconsideration of a decision under section 134 of the Act, the Conservator must seek advice from the Tree Advisory Panel.
The Tree Advisory Panel (the Panel) is established under Division 5.3 of the Act to provide expert advice to the Conservator on matters relating to tree protection in the ACT. Sections 99 and 100 of the Act provide a framework for the membership and functions of the Panel as follows:
99Advisory panel—membership
(1)The tree advisory panel must have at least 3 members.
(2)The Minister must ensure that—
(a)each member of the advisory panel has extensive knowledge of and experience in 1 or more of the following fields:
(i)arboriculture;
(ii)forestry;
(iii)horticulture; and
(b)at least 1 member has extensive knowledge of and experience in arboriculture or forestry; and
(c)the members between them include people with extensive knowledge of and experience in at least 2 fields mentioned in paragraph (a).
100Advisory panel—functions
The advisory panel has the following functions:
(a)to give any advice requested by the conservator, including advice on the following:
(i)an application for approval of an activity under division 3.3;
(ii)an application for approval of a tree management plan under division 5.1;
(iii)the proposed registration of a tree;
(iv)the proposed cancellation of a tree’s registration;
(v)an application for review of a decision under section 134;
(b)to give other advice to the conservator on anything relevant to the conservator’s functions in relation to tree protection.
The Panel is thereby comprised of a group of experts with notable experience in arboriculture and forestry who advise the Conservator on a range of issues pertaining to tree protection and management in the ACT.
The first tree assessor’s report
On 10 April 2024, Mr Neil Cooper, a member of the Tree Advisory Panel, inspected the tree and provided a report with observations and recommendations. Mr Cooper’s report provided that:
The tree is a very large specimen of a Cedrus deodora. Its location is unfortunately only 6 m from the house and has attracted numerous cockatoos dropping significant debris and large cones on the deck and roof below. A very nice tree but the issue of dropping cones can only be resolved by removal – significant safety issue and restricting useability of backyard.

Under “criteria for approval activities”, Mr Cooper’s report addresses the relevant criteria as follows:
(b)     The tree represents an unacceptable risk to public or private safety. [Yes]
The tree is a large spreading Cedrus deodora – it is heavily impacted by cockatoos feeding on the cones and dropping cones below. Deck and pool area are below the tree – high risk of someone being hit.
(c)     The tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure, or service. [No]
The tree is close to the fence but no signs of any substantial damage from roots or growing trunk – applicant is worried about possible risk from falling overhanging branches, but all appear stable and species not known for dropping branches. Blocked gutters is an issue however gutter guard would catch the cone pieces (main issue) but not needles.
(d)     The location of the tree is inappropriate given its potential size and growth habit. [Yes]
Although healthy it is unfortunately a tree in the wrong place – currently 17m height with a canopy of 14 m – this can be expected to significantly increase over time.
(e)     The tree is causing excessive shading to the lessee’s residence, or neighbouring residence, during winter between the hours of 9am to 3pm and pruning is not sufficient to remedy this and is supported by shadow diagrams. [No]
No mention of shading issue at inspection and no solar on house- not an issue for resident.
[In summary:] Main issue is risk of injury from cones being dislodged by cockatoos – significant evidence of this both in the photos provided as well as on inspection. [Emphasis added]
On 23 April 2024, the Panel discussed Mr Cooper’s report and determined that, despite Mr Cooper’s assessment, none of the criteria for approval of removal had been satisfied.
On 29 May 2024, the decision under review was affirmed, and the respondent sent the applicant a notice of reconsidered decision under section 132 of the Act, providing in part that:
This decision was based on the application and supporting documentation provided, taking into account the advice of the Tree Advisory Panel (the Panel, including the Panel’s on-site assessment of the tree(s) following a request for advice in accordance with Section 21 of the Act. It was concluded that it has not been established that a criteria for removal (under D12023-270) has been satisfied.
On 25 June 2024, the applicant filed his application with the ACT Civil and Administrative Tribunal (ACAT) for review of the respondent’s decision.

The ACAT proceedings

The review has been brought under ACAT’s administrative review jurisdiction. The Tribunal stands in the shoes of the original decision-maker when exercising its administrative review functions, as provided by sections 68 and 69 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). The Tribunal has the power to exercise any functions that the respondent may exercise under the Act, including any statutory instruments made or in force under that Act.[13] In making its decision, the Tribunal must by order confirm, vary, set aside, substitute, or remit the decision for reconsideration with directions or recommendations.[14] The decision of the Tribunal is thereby taken to be the decision of the original decision-maker and takes effect from the day the Tribunal makes the order (unless ordered otherwise).[15]
[13] ACAT Act s 68(2)
[14] ACAT Act s 68(3)
[15] ACAT Act s 69
In making its decision, the Tribunal must — like the original decision-maker — have regard to the provisions of the Act, including the Criteria for approval to damage a regulated tree as set out in schedule 1 of the Urban Forest (Approval Criteria) Determination 2023 (No 1), as well as the objects the Act, and the explanatory statements which provide guidance on the rationale for the objectives.
This application was first heard at a directions hearing on 29 July 2024. The matter then proceeded to a preliminary conference on 9 August 2024, which did not result in a resolution of the dispute. The matter then proceeded to a further Directions hearing on 30 September to prepare the matter for final hearing and was finally heard by this Tribunal on 4 October 2024. The decision was reserved, noting the requirement for a decision within 120 days from the date of application as stipulated by section 22P of the ACAT Act, being 23 October 2024.
The hearing on 4 October 2024 was preceded by a site inspection on the same morning, whereby the Tribunal, along with the parties, attended the applicant’s property to inspect the tree and observe its impact.
The Tribunal observed that it is indeed a large tree, particularly given the size of the block upon which it is situated and its coverage of the applicant’s backyard. The tree’s canopy covers the back veranda, shades the living and dining rooms and the walkway from the main part of the house to the home gym in the basement, and the tool shed opposite. The canopy extends a little over the pool area. There was considerable debris from the chewed pinecones and some remnants of dry pinecones.
There is no doubt that the tree has an impact on the property and its occupants. The question for the Tribunal is whether there are means of mitigating this impact to balance the objectives of the Act against the concerns of the applicant.
The applicant’s case
In his application to ACAT, Mr Rothwell did not press his claims against criterion 1(1)(c) of the Criteria, nor the old criterion 1(2) from the repealed Tree Protection Act 2005. Mr Rothwell’s application pressed several of the concerns he raised in the first instance, being risk to safety of people and animals, inappropriateness of the tree in the current location, excessive shading, and exceptional circumstances being discomfort caused by the tree pollen and the anguish caused by the safety concerns. With his bundle of documents, Mr Rothwell has filed a risk assessment report which he prepared using International Standards Organisation (ISO) 31000 process.
Mr Rothwell retired from the Royal Australian Navy (RAN) in November 2021 as a Rear Admiral, following 39 years of service. He is now the director of his own consulting company advising on defence and national security. He provides evidence of his extensive training and experience in safety and risk management, which he says he has applied to the preparation of the risk assessment report he has submitted as part of his application in these proceedings.
He also states that his home in Curtin is the first property that he and his wife have owned given the nature of his work, and for this reason this home is important to him and his wife as they approach the next stage in their lives. At various times in his application, Mr Rothwell says that the tree and the potential danger it poses to his family and visitors, as well as the discomfort it causes through its pollen and significant shading, is a source of distress for him and his wife.
In his risk assessment report, Mr Rothwell identifies the risks posed by the tree as falling pinecones and pollen in spring; the potential impact from the falling pinecones as injury to people, animals, and property; and the liability that would follow. He estimates that the green pinecones in spring, that are dropped by the cockatoos feasting on the seeds of the dry pinecones, are approximately 500 g, and this combined with the velocity achieved from a height of 4 m, will likely result in significant harm to a person, animal, or property. In his risk assessment report, he states that the likelihood of an incident occurring involving the dropping of pinecones is almost certain, and the consequences critical, including fatality or extensive injury to persons or animals requiring significant hospitalisation. These consequences are premised on the estimation that each of the green pinecones can weigh up to 500 g.
At hearing under cross-examination, Mr Rothwell conceded that the likelihood of the risk occurring should be lowered to “possible” from “almost certain”. Nevertheless, according to Mr Rothwell’s risk assessment, the consequence of the risk occurring remain critical.
Mr Rothwell also submits that the pollen from the tree has caused allergic reactions to him and his wife. Though they have managed the symptoms through over-the-counter nasal sprays, the discomfort is significant.
He says that the shade from the tree over the main living area of the residence is significant, interfering with their enjoyment of the property as well as impacting the efficiency of the solar panels which were installed after the tree had reached its current size.[16]
[16] Statement of Richard Hart, 13 September 2024 at [53(e)]
Mr Rothwell also states that the debris of the pinecones and the pine needles block the guttering to the house, and this has caused damage to the property and poses a safety risk, in that Mr Rothwell must regularly climb onto the roof to clear the gutters. Moreover, he says the root system of the tree is causing damage to a retaining wall in the patio.
The respondent’s case
The respondent filed a report in relation to the tree prepared by the Chair of the Tree Advisory Panel, Mr Richard Hart, dated 12 September 2024. The report is based upon a site inspection conducted by Mr Hart on 28 August 2024, Mr Hart’s expertise, and independent information from other sources.
Mr Hart is a professional forester with over 40 years of experience in tree management, natural forest and plantation forest management, and forest harvesting in Australia, Indonesia, and Papua New Guinea.[17] In his report, Mr Hart disagrees with Mr Cooper in almost every respect as it pertains to the criteria for approval to damage a regulated tree. Mr Hart disagrees with the growth estimation given by Mr Cooper for the tree and disagrees that the risks raised by Mr Rothwell cannot be mitigated through any means other than by removal of the tree.
[17] Statement of Richard Hart, 13 September 2024, annexure A
Mr Hart says that the tree height is usually associated with the site quality. At its current site in Curtin, the tree is constrained by urban infrastructure such as the concrete slabs in nearby garages, the pool, and the house foundation. It is estimated the tree will not gain more than 10% further in height within several decades. He also states that the ball shape of the canopy suggests that the tree has reached its potential for the site in Curtin.[18]
[18] Statement of Richard Hart, 13 September 2024 at [26]
In relation to the tree’s impact on the applicant’s solar panels, Mr Hart says that the panels were installed sometime between May 2023 and September 2023, knowing that they would be shaded in winter and would therefore have performance issues.[19]
[19] Statement of Richard Hart, 13 September 2024 at [38]
Mr Hart said that the Tree Advisory Panel have, throughout Mr Hart’s involvement with the Panel — which commenced in 2014 — reached unanimous decisions. He said that, following the panel discussions after the first review of the respondent’s decision, Mr Cooper, the Panel member and author of the initial assessment, had changed his mind in relation to the applicability of the approval guidelines to this tree.
Though Mr Hart states that Mr Cooper did not agree with his own assessment, the Tribunal would have been assisted by evidence from Mr Cooper in this regard. The respondent at hearing sought to rely upon Mr Hart’s assertion as to Mr Cooper’s opinion in relation to the tree. Though the Tribunal is not bound by the rules of evidence, it nevertheless did not find this submission compelling.
I am not satisfied that Mr Hart can make a definitive statement about Mr Cooper’s frame of mind or opinion in relation to the tree. Though Mr Hart states that the Panel made a unanimous decision in relation to their recommendations regarding the reconsideration decision, there is no other evidence before the Tribunal about the unanimous nature of the decision, nor any evidence about whether Mr Cooper changes his mind nor the reason Mr Cooper may have changed his mind. It remains a live issue for the Tribunal as to whether it prefers the findings of Mr Cooper or those of Mr Hart and the Tree Advisory Panel.
Mr Hart’s report is thorough in every respect, including his measurements of the tree and information about the growth and habits of the tree. His written evidence as well as his evidence at hearing were consistent and well researched. He was a compelling witness with significant knowledge and expertise and was able to draw on this to respond to a range of questions put to him at hearing. For these reasons, I find Mr Hart’s assessment and evidence to be superior to the assessment report prepared by Mr Cooper.

The issues to be decided

In deciding this matter, the Tribunal had regard to the Criteria as set out at [8] above. The key criterion on which this matter rests, as emphasised in both the applicant’s and respondent’s submissions, are sections 1(1)(b)–(e) inclusive, and 1(2)(a). The Tribunal’s individual decisions on whether each/any criterion has been met are set out below.
Criterion 1(1)(b): the tree represents an unacceptable risk to public or private safety
This criterion requires an assessment of the acceptability of the risk posed by the tree. The Tribunal must consider what is an unacceptable risk. The Full Court of the Federal Court of Australia in Isles & Nelissen [2022] FedCFamC1A 97 set down guidance on what the court must consider when determining whether risk is unacceptable:
(a)whether the facts suggest that there is a present or future risk;
(b)the magnitude of the risk; and
(c)whether there are tools and circumstances to adequately mitigate the risk.
Mr Rothwell presents the facts in relation to present or future risk in his risk assessment report as follows:
In summer and autumn, cockatoos inhabit the tree in significant numbers and gnaw at the pinecones and branches causing up to 100 unopened pinecones (weight approximately 500gms) and small branches to fall from significant heights to the ground, and on to the eastern deck, roof, and guttering system of the house, into the pool area, and also into the neighbouring property … falling onto the carport and backyard area…
To better contextualise what a 500gm object falling from 14.6 metres would mean, it has this impact:
·        Velocity just before impact – approximately 16.92 meters per second,
·        Kinetic Energy upon impact – approximately 71.57 joules.
To more practically quantify the kinetic energy impact of 71.57 joules, imagine that dropping a typical hardcover textbook (about 1kg) from a height of 1 meter results in approximately 9.8 joules of kinetic energy. The 71.57 joules impact is like dropping that 1 kg textbook from a height of around 8.5 meters.
This kinetic energy represents the potential to cause catastrophic or at least significant injury or damage, especially if the object strikes a vulnerable part of the body or a fragile object.
While it is possible for an unopened pine cone to fall from the top of the tree with little impediment through the canopy during its fall (impacting only on a small branch), it is agreed however, as contended by Mr Hart, that there is a greater likelihood that there will be a number of impediments during a cone fall through the canopy slowing its velocity.
At Mr Hart’s report, he asserts, ‘A 3-4 m cone fall height (free fall after crown interference) and a reference mass of 100-150gm, would appear to be a more reasonable set of assumptions to calculate impact energy.’ In reference to the mass of 100-150gm, I maintain my contention of 500gm as documented at Applicant’s Reply to Respondent’s Written Submission dated 26 September 2024 para 4d.
Using a 500gm object falling from 4m, it has this impact:
·        Velocity just before impact – approximately 8.85 meters per second.
·        Kinetic Energy upon impact – approximately 19.58 joules.
To more practically quantify the kinetic energy impact of 19.58 joules, imagine that dropping a typical hardcover textbook (about 1 kg) from a height of 1 metre results in approximately 9.8 joules of kinetic energy. The 19.58 joules impact is like dropping that 1kg textbook from a height of 2 metres.
Mr Rothwell’s concerns regarding the magnitude of the risk posed by the tree stem to a considerable degree from his estimated weight of the green pinecones. The weight that he attributes to the green pinecones is an estimate based upon his observation of the pinecones. Neither Mr Hart nor Mr Rothwell weighed an individual pinecone or provided independent evidence about the maximum weight of a pinecone.
At hearing Mr Hart estimated that the green pinecones would be no more than 300 g, having weighed the dry pinecones and applied a formula for water and cellulose retention in green timber versus dry. In his statement, Mr Hart says that most pinecones that fall are very lightweight pinecone scales, and though full pinecones do drop, Mr Hart says that these will be intercepted by branches multiple times thereby reducing the speed of the fall significantly.
Mr Rothwell has based his risk assessment of the fall of the pinecones on the estimation that each green pinecone that falls could weigh up to 500 g. Mr Rothwell’s estimation is based upon his personal observations of the pinecones, though these observations do not include weighing the pinecones.
The Tribunal may inform itself in whatever manner it considers appropriate in the circumstances.[20] Given the contention around the weight of the pinecones, and the absence of definitive evidence in relation to this issue from either party, the Tribunal conducted online research to ascertain how much the pinecones of a Cedrus Deodora weigh, according to independent sources.
[20] ACAT Act s 26
The Centre for International Forestry Research and World Agroforestry (CIFOR‑ICRAF) is an online resource for information in relation to thousands of tree species.[21] The CIFOR-ICRAF provides that the maximum weight of Cedrus Deodara pinecone is 226.5 g per pinecone.[22] This is closer to Mr Hart’s estimation of the maximum pinecone weight at 300 g, and significantly lower than Mr Rothwell’s estimation of the pinecone weight at 500 g.
[21] CIFR, About CIFOR-ICRAF, (Web Page) Orwa C et al, ‘Cedrus Deodara’, Agroforestree Database, (Web Database) >
Given the independent evidence regarding the weight of the pinecones, and the estimated weight of the pinecones provided by Mr Hart, a professional forester with considerable experience, the Tribunal finds that the maximum weight of the pinecones from the Cedrus Deodora tree is likely to be closer to 230 g than 500 g. This finding on the evidence significantly lowers the magnitude of the risk of catastrophic injury as a result of the falling pinecones.
Mr Hart’s evidence was that the pinecones become ripe and attractive to cockatoos normally once every three years. This is consistent with the information available from online sources, including CIFOR-ICRAF. According to Mr Hart, due to climate conditions in the past two years, the pinecone growth and ripening has occurred two years in a row, thereby increasing the cockatoo activity.
Though the tree has been more productive in recent years and attracted more cockatoos, according to the experts, this bird activity is usually limited to approximately six weeks either annually (as has been the case in the last two years) or every three years, when the pinecones ripen. Mr Hart submitted, and Mr Rothwell accepted, that the pinecones are likely to be intercepted by several branches on the way down, thereby reducing the velocity of the falling pinecones. The short timeframe within which the pinecones are dropped by the cockatoos, the weight of the pinecones, and the fact that they are slowed down by interception of branches on the way down, also reduces the magnitude of the risk of injury.

There is no evidence before the Tribunal of injury caused by pinecone strikes from this tree species nor this particular tree. Attached to Mr Hart’s statement was a report prepared in 2019, titled “A review of deaths in Australia from accidental tree failures”. The report provides data and analysis of deaths in Australia from tree failures, concluding that the risk of death from tree failure is extremely rare. The report found that there had been 273 deaths resulting from tree failures in the previous 160 years.[23] The risk of catastrophic injury or death by pinecone strike is therefore very low.
[23] Hartley, M.A, Chalk, JJ, ‘A review of deaths in Australia from accidental tree failures’ (May 2019)
Moreover, the arial photographs of the tree, taken between 2004 to present day,[24] suggest that the tree has not been pruned for several years. The photographs show the tree canopy was approximately 12.25 m in diameter in 2004, and it now has a diameter of approximately 16.53 m to 17.63 m. Pruning of the tree would bring the branches closer to the trunk and significantly reduce the area covered by the falling pinecones, indeed, it would also reduce the overall number of pinecones on the tree. Pruning of the tree is part of regular maintenance of the garden, and in this case, apparently well overdue. Mr Rothwell has obtained a quote for pruning which he submitted to the Tribunal at hearing.
[24] See Richard Hart’s Witness Statement dated 13 September 2024
Though I accept that Mr Rothwell has a genuine apprehension that the pinecones will cause injury and that such injury will create a legal liability in him, apprehension on its own is not sufficient to satisfy this criterion.[25] Moreover, there is no recorded evidence of injuries from falling pinecones of this species of tree. The risk attributed to the pinecones by the applicant was based on the premise that the pinecones weigh more than double what the evidence suggests that they weigh. Finally, it was submitted by the respondent, and I accept, that any risk of falling pinecones can be mitigated through pruning and/or de-coning the tree, by installing a shade sail to divert the fall of the pinecones, and exercising caution while walking underneath the tree during the six-week period identified above.
[25] Egan v Conservator of Flora and Fauna (Administrative Review) [2016] ACAT 27
Moreover, I find that any risk posed directly to Mr Rothwell in his endeavours to clear the guttering of the falling debris from the tree can be mitigated with the installation of appropriate gutter guards and if the debris continue to cause congestion, by employing a professional tradesperson to clear the gutters.
I find that this tree does not represent an unacceptable risk to public or private safety, and pruning activity will mitigate any risk that may exist.
Criterion 1(1)(c): the tree is shown to be causing or threatening to cause substantial damage to a sustainable building, structure or service
In relation to this criterion, Mr Rothwell stated in his application for reconsideration of a decision to the Conservator:
[Regarding 1(1)(c):] The tree limbs overhang both our house and the adjacent houses’ car port. They are very long limbs and there is a real risk that in a very strong wind they may break and cause damage to both structures.[26]
[26] The applicant has not relied on this criterion in his review application.
Though Mr Rothwell did not press this point at hearing, I have turned my mind to it. I find that, as noted above, the tree is in urgent need of pruning. Pruning does not appear to have occurred in any significant manner over the past 10 years. Pruning of the tree will largely deal with the issue of overhanging limbs that may break during strong winds. Mr Hart found the tree to be in good health and Mr Cooper states that the tree is not a species of tree that drops branches.
At the site inspection, Mr Rothwell pointed out some slight cracking to a wall in the courtyard that sits below the tree. While the cracking was apparent, the damage did not appear to the naked, untrained eye to be substantial. Mr Rothwell did not present any evidence from an expert about the damage that the tree may be causing to any significant building, structure, or service. Mr Hart has inspected the site and notes that there does not appear to be any damage caused by the tree beyond the signs of cracking which are not substantial.
I am not satisfied that the tree is causing or threatening to cause substantial damage to a substantial building, structure, or service.
Criterion 1(1)(e): the tree is causing excessive shading to the lessee’s residence, or neighbouring residence, during winter between the hours of 9am to 3pm and pruning is not sufficient to remedy this
The shadow diagrams provided by Mr Rothwell show that the house is shaded between 9:00 am and 11:00 am, decreasing between 11:00 am and 3:00 pm. Though the tree does cast a shadow, the shading cannot be described as excessive as it does not cause the shading beyond 11:00 am.
The arial photograph of the property in 2024 shows the tree canopy diameter is approximately between 14–17.63 m. It is not surprising that the shadow cast by the tree is now impacting the sun exposure in the living areas, as well as potentially impacting the operation of the applicant’s solar panels.
Data on the impact of the tree’s shadow as provided by the applicant — sourced from National Grid Support, a solar company — only covers a 24-hour period on 8 July 2024. There was also no explanation of weather conditions and how these may impact the shadow cast on the solar panels. The e-mail accompanying the data does, however, state that:
My colleague in tech support Zillah has downloaded a report of your system’s production from yesterday, which we can consider to be a fairly standard Winter’s day.
Though the performance of solar panels is not a criteria for approval, and the panels were installed in or around 2023 and appear to be positioned with the impact of the tree in mind, performance of solar panels has been used here as evidence of the impact of the shading caused by the tree.
The Tribunal has informed itself of the weather on 8 July 2024 through available information online. On that day, the weather in Canberra was cloudy and at 12:00 pm it was overcast.[27] The solar data captured for that day is therefore not necessarily indicative of the impact of the tree, but as submitted by the respondent, weather conditions could also have played a role.
[27] ‘July 2024 Weather in Canberra — Graph’, timeanddate (Web Page), >
Solar data from several days with details of weather conditions would have been more helpful to provide more information on how the shade from the tree affects the solar panels. The Tribunal is not satisfied that the evidence of the solar system provided by the applicant is conclusive of the impact of the shade cast from the tree onto the system.
I may be wrong about the weather on that day and how it may have contributed to the shading of the solar panels, however, given the size of the canopy in 2024 — at approximately 14–17 m compared to its size in 2013 at approximately 12.25 m — I find that pruning of the tree would more likely than not have a considerable impact on reducing the shade cast by the tree and thereby reduce the impact of the shade on the residence and improve the performance of the solar panels.
Criterion 1(1)(d): the location of the tree is inappropriate given its potential size and growth habit
In dealing with the distinct criterion (1)(1)(b), Mr Rothwell makes the following statement which is also relevant to criterion (d):
It is not possible to avoid the confines of the tree as it inhabits a quarter of the block, overhangs the back deck, overhangs the pool and overhangs the roof.
In relation to this criterion, Mr Rothwell says:
The Conservator’s Statement of Reasons (Index of documents No.10) at paragraph 9 states, ‘Mr Cooper stated Tree 1 is a very large specimen of a Cedrus deodara. Unfortunately , its location is only 6m from the house and has attracted numerous cockatoos dropping significant debris and large cones on the deck and roof below.’
The ACT Government Transport Canberra and City Services, Design Standards for Urban Infrastructure Plant Species for Urban Landscape Projects in Canberra, Botanical Name Cedrus deodara states that the landscape use for the tree is ‘Only suitable as a street tree in very wide verges’. The location of the Tree in 3 Champ Pl does not match with these design standards. At the Tree’s present height of 17 m and span of 14m, is still has a lot of maturing to do. The ACT Government National Arboretum Canberra, Forest 11- Himalayan Cedar fact sheet shows that the Tree is expected to grow another 100% in height to 35m and another 42% in span to 20m.[28]
[28] Michael Rothwell’s Witness Statement dated 28 August 2024 at [19]–[20]
Mr Hart says in his report that Cedrus Deodora are planted both as street trees and garden ornamental trees across Canberra. He does not agree with the view that the tree is not suitable to its current location. In his report, Mr Hart submits that the tree is very close to its maximum size and judging from its canopy shape it has stopped growing, but any growth is unlikely to exceed 10%.
The concerns raised by Mr Rothwell that the tree may reach its maximum height of 35 m are not supported by the data and analysis provided by Mr Hart, having measured several specimens of the same tree species planted in Telopea Park. He estimates that those trees are almost 100 years old, and he has measured the tallest tree of this species at Talopea Park to be approximately 22 m, with an achievable canopy diameter of 15–16 m. He has also referred to independent sources which provide that the maximum height for this species, with sufficient soil volume and appropriate soil moisture, is up to 20 m.
According to Mr Hart, the tree is at or near full size given its shape, age, and the limitations posed by urban infrastructure that it is growing within. Mr Hart says that the Cedrus Deodora is not fully suited to the dry climate and poor soils in Canberra and therefore grows very slowly. He quotes from ACT Government Municipal Infrastructure Standards when he says that the maximum height for the tree and its canopy spread is 20 m and 15–20 m respectively. He says that this is at odds with the applicant’s submissions on the tree’s growth habits, and given the soil quality and the lack of available resources to the tree within the urban environment, it is unlikely that the tree will grow much bigger than it currently is. Given Mr Hart’s significant knowledge and experience, I accept his evidence in this regard and prefer it to Mr Rothwell’s evidence on the potential size of the tree.
Mr Hart says that the tree is not in an unsuitable location. He says that the distance of the trunk is at 5.7 m from the house and the canopy overhangs the roof by 3–4 m, and overhangs the deck/access path to the backyard and partially overhangs the pool. He later says that the distance from the house allows the impact of the tree to be controlled with pruning. He says that the tree is planted as a garden ornamental and that such plantings are “relatively common”, and the tree is a “long-established species in Canberra”.[29] Mr Hart says that the tree does not appear to be directly impacting the structure of the house or neighbouring infrastructure. On this basis, he says that the tree is not unsuitably located.
[29] Richard Hart’s Witness Statement dated 13 September 2024 at [35]
Though I accept Mr Hart’s evidence that the tree is unlikely to grow bigger, it is already a very large tree. Though I accept Mr Hart’s evidence that this species is grown as a garden ornamental, minds will differ on the suitability of such a large tree to an urban backyard.
The respondent asserts that the tree can be pruned to mitigate much of the inconvenience it is causing Mr Rothwell and his family. I accept that pruning will certainly deal with the issue of the number of pinecones that will drop, and it deals with the shading and with the debris issue to a certain extent.
Mr Rothwell’s claim that “this tree dominates the north east side of the 841m² private block”[30] was consistent with the Tribunal’s observation of the tree during the site inspection. As noted earlier, the tree indeed dominates the northeast side of the block as it is a considerable specimen.
[30] Michael Rothwell’s Witness Statement dated 28 August 2024 at [21]
The criterion requires a consideration of the appropriateness of the tree to its location, given its potential size and growth habit. I interpret the language of this criterion to include the current size of the tree. I can certainly appreciate Mr Rothwell’s point that the tree is simply too big for its current location. Objectively speaking, the tree dominates the courtyard. Minds will differ on how a courtyard should be used, but it is fair to say that many people would not choose to plant a tree of this size in a courtyard. Indeed, evidence submitted by Mr Rothwell from the ACT Government Design Standards for Urban Infrastructure provides that the tree species is “[o]nly suitable as a street tree in very wide verges”.[31]
[31] Michael Rothwell’s Witness Statement dated 28 August 2024 at [20]
Be that as it may, the criterion currently under review requires an assessment of the suitability of the tree to its current location considering its size and growth habit. The Tribunal must thereby go beyond just the size of the tree and the opinions of individuals and design standards, and determine the suitability of the tree to its location based upon the impact that the size of the tree and its growth habit have on this location.
If I accept that the tree has reached near its maximum size, and note that the tree’s impact in relation to the danger it poses with the falling pinecones and debris and the shading of the property can be mitigated through pruning, and if I am not satisfied that the tree is causing or threatening to cause substantial damage to a substantial building, structure or service, and no other claims have been made in relation to the impact that the size of the tree has on its current location, then I must conclude that the tree is not inappropriately located despite its considerable size.
Criterion 1(2)(a): any exceptional circumstances raised by the applicant, taking into account advice from the Tree Advisory Panel
In relation to this criteria, Mr Rothwell has raised the following issues:
(a)In spring, the pollen from the tree causes him and his wife to suffer from a runny nose, sneezing and discomfort. This is managed through over-the-counter nasal sprays and tissues (at hearing it was established that the tree pollen from this species occurs during the autumn rather than spring and the symptoms affecting Mr Rothwell and his wife occur around May).
(b)The presence of the tree causes mental anguish for the owners, particularly because of the perceived risk posed by the falling pinecones, and the mess and noise created by cockatoos. He says that the maxim caveat emptor should be applied here, as they did not purchase the property in spring or summer and have never lived with a tree of this nature and impact, thereby they were not prepared for the impact of the tree on the residents.
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848, Vice President Lawler said, in relation to what may be regarded as “exceptional circumstances”, that:
In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.[32]
[32] [2007] AIRC 848 at [10]
Mr Rothwell has submitted that the combination of the impact of the cockatoos on his premises, taken with the pollen from the tree on his and his wife’s health, satisfy the requirement of exceptional circumstances in relation to this tree.
The respondent says that there has been no medical evidence to substantiate the claim that the pollen has caused the applicant and his wife to experience the symptoms they complain of. Moreover, the tree flowers in autumn and therefore the allergies in spring cannot be attributed to the tree. As mentioned, at hearing the applicant conceded that the reaction that he and his wife had had occurred around May. He conceded that he had mixed-up his seasons. Perhaps because of the frequent overseas travel, Mr Rothwell has understandably become confused about the seasons when preparing his submissions. This mix-up is certainly not fatal to the applicant’s case.
The respondent says that the pollen causing the allergic reaction is not necessarily from the tree in question but could be from any of the other nearby trees. I accept Mr Rothwell’s evidence that he has observed significant pollen debris on his back veranda, that the volume of the pollen suggests that it is coming from the tree and that he and his wife have experienced seasonal allergies while this pollen is produced by the tree. The Tribunal cannot make a definitive ruling on this issue without medical evidence, but I accept Mr Rothwell’s evidence that he and his wife have been experiencing seasonal allergies and that they attribute these to the pollen from this tree.
However, for this criterion to be satisfied, the applicant must show that the circumstances he is concerned about are unusual, special, or uncommon. The Tribunal does not regard the issues raised by Mr Rothwell as trivial or inconsequential, however seasonal allergies are not unusual nor uncommon in the ACT. Indeed, the ACT boasts one of the highest rates of seasonal allergy rates in the country.[33] Mr Rothwell and his wife have been managing their symptoms with over-the-counter medication and tissues, suggesting that the symptoms are not extreme nor require medical attention. Though the Tribunal does not consider this issue as insignificant or trivial, it cannot regard it as exceptional.
[33] ‘Clear signs of another bumper pollen season in Canberra’, Australian National University Newsroom (online, 19 August 2021), >
The destructive activity of the cockatoos is also not unusual nor uncommon in Australia.[34] Cockatoos can be seen in large numbers across Canberra making their way through trees and grasses, and causing havoc. Many homeowners watch with despair as cockatoos and other parrots methodically tear apart trees and leave significant debris in their wake. Again, the issues raised by Mr Rothwell are not trivial, however they are also not out of the ordinary course, or unusual or uncommon and thereby not exceptional, particularly in the ACT where parrot numbers are significant.[35]
[34] Gavin McGrath, ‘Corellas and white cockatoos filling skies and sporting fields across Australia is not all bad news’ (ABC News, 19 February 2023) ‘Canberra Garden Birds: Cockatoos and Parrots’, Canberra Ornithologists Group (Web Page) type="1">
I sympathise with Mr Rothwell, and accept that he and his wife are genuinely concerned and impacted by the tree and that these concerns have reduced their enjoyment of their home and resulted in what he has described as mental anguish. The tree is indeed a large specimen and as I have previously stated, it does dominate the northeastern corner of the block, casting a large shadow, and I can imagine that the cockatoos wreak havoc when they visit the tree annually. The Conservator’s evidence which I accept, suggests that pruning of the tree will significantly reduce the impact that it has been having on Mr Rothwell and his wife. It does appear that the tree has been neglected for several years and that pruning is well overdue and will indeed mitigate the issues that have given rise to this application.
The Tribunal orders that:
(a)The decision under review is confirmed.
………………………………..

Member P Hatami

Date(s) of hearing:	4 October 2024
Applicant:	In person
Counsel for the Respondent:	Mr K Lee
Solicitors for the Respondent:	Ms A Tykocinski, ACT Government Solicitor