Sharma v Conservator of Flora and Fauna - [2014] ACAT 20

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SHARMA v CONSERVATOR OF FLORA AND FAUNA

(Administrative Review) [2014] ACAT 20
AT 14/03
Catchwords: ADMINISTRATIVE REVIEW – tree protection - reconsidered decision by Conservator of Flora and Fauna to refuse approval to remove a regulated tree – Criteria for tree damaging activity: whether tree represents an acceptable risk to public or private safety; whether tree is shown to be causing or threatening to cause substantial damage to substantial building, structure or service; whether location of tree is inappropriate given its potential size and growth habitat; whether tree is affecting solar access to lease or neighbouring lease during winter hours of 9 am to 3 pm; and whether there are exceptional circumstances and/or the importance of tree in surrounding location, which may be considered - consideration of each criterion: no criterion met
Legislation:Tree Protection Act 2005, ss 3, 7, 8, 10, 15, 19, 21, 25, 107 and 107B

Subordinate
Legislation:Tree Protection (Approval Criteria) Determination 2006
(No 2) (DI 2006-60),Schedule 1, paragraphs 1 and 6
Tree Protection (Built-Up Urban Areas) Declaration 2009
(No.1) (NI2009-62) (repealed)
Tree Protection (Tree Management Precincts) Declaration 2009
(No 1) (NI2009-213)

Cases:Janvid Pty Ltd and Conservator of Flora and Fauna
[2002] ACTAAT 18
Kelly v Conservator of Flora and Fauna [2009] ACAT 24
Maciejewski v Conservator of Flora and Fauna
[2013] ACAT 78

Tribunal: Ms E. Symons - Presidential Member

Date of Orders: 16 April 2014
Date of Reasons for Decision: 16 April 2014

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL AT 14/03

BETWEEN: DHARMA SHARMA

Applicant

AND:CONSERVATOR OF FLORA AND FAUNA
Respondent

TRIBUNAL: Ms E. Symons - Presidential Member

DATE:16 April 2014
ORDER

The Tribunal Orders that:
1. The Conservator’s decision is confirmed.
………………………………..
Ms E. Symons - Presidential Member

REASONS FOR DECISION

The Application

This is an application to the Tribunal for review of a reconsidered decision made by the Conservator of Flora and Fauna (“the respondent”) on

4 December 2013 to refuse approval for the removal of a regulated tree under section 107 of the Tree Protection Act 2005 (“Tree Act”). The respondent’s decision is referred to in these reasons as “the reconsidered decision”.
The tree is a Quercus robur, commonly known as the English Oak (‘the tree’). It is located on a residential block at Block 27 Section 45, Mawson with the street address of 67 Wilkins Street, Mawson (‘the property’). Dr Dharma Sharma (‘the applicant’) is the lessee of the block and he has applied, under section 107B of the Tree Act, for review of the reconsidered decision.
On 14 October 2013, Treeworks (ACT/NSW) Pty Ltd (“Treeworks”) applied on behalf of the applicant to remove the tree. The application stated “Oak - tree is too close to H/V power lines. To continue to prune like this will be a constant issue.”
On 29 October 2013, a tree inspection officer inspected the tree and recommended that the application be rejected. On 31 October 2013, a delegate of the respondent refused the initial application, under section 25 of the Tree Act, on the grounds that it had not been established that any of the criteria for removal set out in Schedule 1 of the Tree Protection (Approval Criteria) Determination 2006 (No 2) (DI 2006-60), (the Determination) have been satisfied.
On 13 November 2013, the respondent received the applicant’s application for reconsideration of the decision. The applicant stated that the application was based on the criteria in sections 1(b), 1(c), 1(d) and 1(e) of Schedule 1 of the Determination. He attached a number of photographs and a quotation from Treeworks dated 14 October 2013 and raised the following concerns:
a.shadow on the solar panels - during winter all panels are in partial shadow (from the trees) for most of the day resulting in degraded or nil power generation;
b.too close to High Tension Power line (22 KV) - the tree is very close to the power line; it is necessary to pay ACTEW to have the power turned off for tree pruning (a cost of about $450.00); there is a safety issue if the tree’s branches touch the power lines; it is unsafe to go near the trees for lawn mowing; it is risky for people walking dogs and for the grandchildren to play near the tree; and
c.deposit of leaves on roof gutters and blockage of down pipes - every year the tree deposits leaves in the gutters which block the down pipes. The blockage causes flooding inside the house during heavy rain which damages the house. It costs money to clean the gutters as it is unsafe for the applicant, who is aged 69 years, to get on the roof.
The matter was referred to the Tree Advisory Panel (‘TAP’) and on 25 November 2013 Mr Allan Moss, a delegate of the respondent, inspected the tree and prepared a report. In his report he stated:
This Quercus robur, the subject of the reconsideration application, appears to be in good health and has been pruned in the past to clear power lines. Only very minor pruning would be required to keep it clear to ACTEW standards. Due to its location on the block in relation to the dwelling, winter solar impedance should not be significant. There do not appear to be any matters that would support a reversal of the first decision.
At a TAP meeting on 28 November 2013 the panel agreed with Mr Moss’s conclusion and recommended refusal of the application on the basis that none of the criteria for approval had been satisfied. The respondent’s reconsidered decision was dated 4 December 2013 and forwarded to the applicant under cover of a letter dated 5 December 2013.
On 7 January 2014, the applicant applied to the Tribunal for review of the respondent’s reconsidered decision. He relied on the issues set out in paragraph 5 above. In addition to photographs, the applicant provided the Tribunal with a diagram showing the canopy of the tree, the canopy of another tree (“tree 3”), the location of the solar panels on the roof of his house and graphs showing the sun’s movement on 30 June, 21 March and 23 September and on 25 December.
In accordance with Tribunal directions the applicant filed a statement on 5 February 2014 and the respondent filed a statement of facts and contentions on 19 February 2014. On 5 March 2014, the applicant filed a witness statement by Mr Sam Leone. On 6 March 2014, the respondent filed a witness statement by Mr Allan Moss and on 11 March 2014, the applicant filed a response to

Mr Moss’s witness statement. On 12 March 2014, the respondent filed its reply to the witness statement of Sam Leone. The hearing commenced with a site inspection on 20 March 2014 and continued at the Tribunal’s premises the following day.
The site inspection of the tree and the block took place in the presence of the parties, their representatives, Mr Moss, Mr Allen and Mr Leone. The Tribunal’s attention was drawn to the tree’s location in relation to the power lines and the house and the verge; the bicycle path across the road; the tree’s canopy’s overhang of the roof of the house; the location of tree 3; the location of the solar panels on the applicant’s house and the location of the solar panels on Mr Leone’s house and the meter readings from the applicant’s and Mr Leone’s solar panels.

The hearing

Dr Sharma represented himself at the hearing. He gave evidence and called evidence from Mr Sam Leone. Ms Clare Besemeres, from the ACT Government Solicitor, represented the respondent. Mr Allan Moss gave evidence. At the conclusion of the hearing the Tribunal ordered that the parties file and serve any written submissions by close of business 28 March 2014 and reserved the decision. The applicant and the respondent each filed written submissions on 28 March 2014.

Applicable Law

The objects of the Tree Act are set out in section 3 and include:
3   Objects of 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.
(2)   In this section:
urban forest means the trees located in the built-up urban area.
urban forest values means the amenity and economic and environmental benefits derived from the urban forest and the associated tree canopy cover.
The Tree Act applies to trees in built-up urban areas as declared by the Minister (section 7). The Tree Protection (Built-Up Urban Areas) Declaration 2009 (No.1) (NI2009-62) (repealed), declared Mawson to be a built-up urban area.
Section 8 of the Tree Act defines a ‘protected tree’ to include a ‘regulated tree’ and section 10 defines a ‘regulated tree’ as:
10 Regulated trees and tree management precincts
(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.

The Tree Protection (Tree Management Precincts) Declaration 2009 (No 1) (NI2009-213) declares that leased land within the built-up urban areas as declared from time to time under section 7(2) of the Tree Act to be a Tree Management Precinct.[1]
[1] See paragraph 13 – Mawson has been declared to be a built-up urban area.
It is an offence under the Tree Act to damage a protected tree (section 15) unless, pursuant to section 19, approval has been granted by the Conservator under section 25. Removal of a regulated tree therefore requires approval.
Section 25(3) of the Tree Act sets out the matters to which the Conservator must have regard when making a decision on an application. They are:
(a) the approval criteria; and
(b) the advice (if any) of the advisory panel; and
(c) anything else the conservator thinks relevant.
Section 21 of the Tree Act provides for the Minister to determine the criteria to be applied when considering an application for approval to a tree-damaging activity. On 4 April 2006 the Minister for the Environment made the Tree Protection (Approval Criteria) Determination (No.2) for the purpose of

section 21. The relevant criteria for consideration in this case are in

paragraph 1(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:
…
(b) the tree represents an unacceptable risk to public and 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 lessee’s lease, or         neighbouring lease, during winter between the hours of 9am to 3pm           and pruning is not sufficient to remedy this (excluding remnant    eucalypts)
…and
All other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.
The criteria also provide that:
(3) When considering 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.

Issue

The issue for determination is whether any of the criteria in paragraph 1 of Schedule 1 of the Determination are satisfied.

Agreed facts

It is agreed that the tree is a regulated tree and that its removal requires approval. It has been identified as a Quercus robur, commonly known as an English oak. The tree is located in the North West corner of the applicant’s property. It has been assessed as a mature tree. It is in excellent health. The tree is not a species listed in Schedule 3 of the Determination.[2]
[2] Schedule 3 of the Determination lists local ecologically beneficial species for purposes
The applicant estimated the tree to be approximately 22 metres high, with a canopy of 21 x 14 metres. While the respondent estimated the tree to be approximately 18 metres high with a canopy of approximately 23 metres and trunk circumference of approximately 2 metres, Mr Moss said on behalf of the respondent, that he would not dispute the applicant’s measurements.

The applicant’s evidence and contentions

The applicant told the Tribunal he is a scientist. He has a PhD in Physics (Astrophysics, Nuclear technology and Space Physics); a Masters Degree in Physics and a Bachelor of Science in Physics, Chemistry and Mathematics. Between 1975 and 1984 he was developing solar panels and solar cells when working on satellite experiments. He has worked on energy efficiency in Australia and at space centres in India and Australia and for the National Aeronautics and Space Administration (known as NASA). He submitted that based on this experience he has the expertise to talk about solar technology.
The applicant said that his house had flooded during rain, shortly after he bought the house in 2006. As the result of enquiries he made at that time he found that the underground pipes were blocked due to the tree’s roots. At a cost of $3,000 he had the pipes dug up and re-laid. He does not know if the tree’s roots have also caused damage to his house.
When his heating bill totalled $1,600 per annum he decided to investigate installing solar panels. He made enquiries, discussed the matter with his neighbour, Mr Leone, and decided on a suitable 5kW solar system which he had installed on his north facing roof at a cost of $10,000 in July 2013. Mr Leone installed two 5kW systems on his west facing roof around the same time as the applicant.
The applicant said the power generated by his solar system starts reducing, in summer, after 2 pm as the tree starts blocking the sun and the power reduces to almost zero after 3 pm.[3] The main part of his house was under shade during winter. The applicant’s panels, which he said should produce 1.4 times that of Mr Leone’s system, in fact produce less because of the shadow from the tree. He provided the Tribunal with data he had recorded for his and Mr Leone’s solar panel systems between 20 February 2014 and 20 March 2014. He submitted that he was losing power production for about six hours a day in summer and for about three hours a day in winter.
[3] Applicant’s submissions dated 28 March 2014, page 2
As well as the impact of the tree’s shadow on his solar panels, he had concerns about the tree’s location near high voltage overhead power lines and flooding in his house caused by leaves from the tree falling onto his roof and blocking the gutters. He called Treeworks who gave him a quotation to remove the tree. The tree surgeon told him that the solar power can only improve if the tree, and tree 3, were removed. The applicant authorised Treeworks to lodge the application to remove the trees. However, Treeworks, by mistake, only sought removal of the one tree, which is now the subject of this review.
The applicant told the Tribunal that he was 69 years of age and he and his wife have health issues. They both suffer from arthritis. They need good heating in their home at a reasonable cost. In order to manage the cost and reduce their previous heating bills he decided to proceed with installing solar panels in the expectation that his energy use would be cost neutral. He said he was following government policy which promoted solar panels as renewable energy.
The applicant said, depending on the time of the day, the tree can cast a shadow to nearly 100% on his house. In response to a question from the Tribunal, the applicant agreed that the solar panel company (“the company”) had inspected his property before giving him a quote. The company had noted the tree’s location and told him he would have problems with the solar panels, given the tree’s location. He said that he had told the company that he would look into pruning the tree.
The applicant told the Tribunal that the tree was impacting on him financially. He was suffering a financial loss from his investment in the solar panels. He submitted that the tree needed to be considerably pruned to realise the full potential of his investment. He has discussed pruning the tree with Treeworks and understands that he will have to pay about $450.00 to ACTEW to cut off the power to the overhead lines while the tree is pruned. In addition to this expense he had to pay ACTEW about $1,500.00 in around 2008 to prune the tree’s branches to the required distance from the power lines. He said that these expenses were a financial burden to him. He commented that the problems with the tree were not of his doing as he did not plant the tree.
Further, he said that he would also experience a financial burden in paying for the maintenance of his gutters and roof. He has a right shoulder injury and cannot clean the gutters. It is unsafe for him to climb onto his roof to remove fallen branches. He has previously prevailed upon his sons to do the roof and gutter maintenance, however, they now both live outside of Canberra, one in Western Australia and the other overseas. He has not yet obtained a quote for the costs of maintaining the roof and gutters. He said that if the gutters are not cleared of leaves his experience, as recently as two weeks ago, was that during heavy rain parts of his house are flooded. The most recent flooding was in the central part of the house and the bathroom.
He told the Tribunal of his safety concerns if the tree’s branches touch the power lines. Further, he said that some of the branches that had fallen from the tree were 1.5 metres in length and had a thickness of about 7 centimetres. Before the site inspection he had removed the fallen branches which were on the ground when he mowed the lawn. He said it was not safe for any member of his family or of the public to go near the tree and that frequently school children and people walking their dogs walked near the tree.
In cross examination, the applicant was asked why he had not applied to the respondent to remove the tree prior to having the solar panels installed on his roof. He said that he had applied in 2012 for permission to conduct major pruning to both the tree and tree 3 but his application was refused. When asked if he took a risk installing solar panels after his application had been refused he told the Tribunal that he knew he could apply again.
When asked if he had undertaken any remedial action in relation to preventing the leaves entering his gutters he said that he had not obtained any advice about suitable actions or materials; he had used his commonsense and with the help of his sons he had put metal mesh over the gutters. He commented that the mesh did not prevent some leaves blocking the gutters.
In cross examination, the applicant was asked if he had heard of micro inverters which enable each solar panel to operate independently such that if one panel is shaded only that panel loses power as opposed to the shade reducing the performance of all panels. In his written submissions he said that ‘the knowledge of micro converters (sic) has NO relation with the subject of my application. And thus no bearing on any aspect of my application’ [4].
[4] Applicant’s submissions dated 28 March 2014, page 5

He also told the Tribunal, that as a result of previous severe pruning to keep the tree’s branches away from the power lines, which was done before he purchased the property, a full half of the tree is missing when viewed from Wilkins Street, which detracts from the aesthetics of his local “urban forest”.[5]
[5] Applicant’s submissions dated 28 March 2014, page 5
It is the applicant’s contention that each of the criteria in paragraph 1(1) (b), (c), (d) and (e) of the Determination is satisfied so that the tree may be removed or severely pruned.

Mr Sam Leone – the Applicant’s witness

Mr Leone, a semi retired journalist and public relations person, confirmed that around the same time as the applicant he had installed solar panels on his property, which was on one corner of the T intersection of Hoadley Street and Wilkins Street and opposite to the applicant’s property which was on the other corner. They had used the same company. He had his panels installed on his western roof.
Mr Leone said that the applicant had expressed to him his concern about the impact of the tree’s shade on his solar panels. Mr Leone agreed to collect some data from his solar panels so that it could be compared with the applicant’s data. Mr Leone added that he felt it was unfair that the applicant was not getting a return on his investment.
In cross examination, Mr Leone said that he was not in the solar panel business. He said that science had been a big part of what work he had done as a journalist over 40 years. He agreed that he was a not a solar panel expert. He had not heard of micro inverters.

The Respondent’s evidence and contentions
Mr Allan Moss

Mr Moss said he was a retired horticulturist, having obtained a Certificate in Horticulture (Credit grade) in 1978 and a Diploma of Education in Horticulture in 1983. He has over 40 years’ experience in Horticulture. For the past four years he has been a TAP member. He still does some consulting work.
He had inspected the tree on 25 November 2013. During that inspection he determined that the tree was a healthy, mature specimen, stating that the living structure of the tree is sound and does not present a safety risk. The tree was well past its phase of rapid growth. While it will probably continue to grow slowly its crown spread is unlikely to expand significantly. He observed that it was well away from the applicant’s house and only slightly overhangs the applicant’s house.[6]
[6] Allan Moss, Witness Statement dated 11 February 2014, page 3 Conclusion
He said that he determined the shadow effect of the tree utilising two applications on his smart phone, namely (i) the Compass and (ii) Sun Seeker. The Sun Seeker application provides a flat view compass and an augmented reality camera 3D view showing the solar path, its hour intervals, its winter and summer solstice paths, rise and set times and a map view showing solar direction for each daylight hour.
In his witness statement he said “The solar panels, although the main basis for this application, are really irrelevant to the reconsideration as the Act does not provide for shading of solar panels, just shading of the whole block.” [7] He referred to the photographs[8] attached to his witness statement which depicted the approximate tree shadow at the winter solstice, 21 June, at hourly intervals between 9 am and 3 pm and stated that, not allowing for any sun shining under or through the canopy, the area of the block shaded by the tree ranged from 7% at 9am to 16% at mid-day to a maximum of about 24% at 3 pm. He said that the shading figures produced by Dr Peter Coyne on these photographs presupposed that the shading pattern would emanate from the entire width of the tree, as if a blanket had been put over the top and cast 100% shade whereas at least two thirds of the sunshine would get through the leafless canopy in winter. He opined that Dr Coyne’s figures overstated the amount of the shade. He said his opinion was that he did not consider that winter shading of the block could be considered “substantial” as required by the Determination.[9]
[7]     Allan Moss, Witness Statement dated 11 February 2014, paragraph 1.
[8]     Attachment 1, seven photographs provided by Dr Peter Coyne depicting the approximate tree shadow at 9 am, 10 am, 11 am, Noon, 1 pm, 2 pm and 3 pm on 21 June (the winter solstice)
[9]     Paragraph 1(e) of Schedule 1 of the Determination
Mr Moss also opined that the tree provided an economical benefit for the applicant in summer. In the period between the 1970s and the 1990s it was considered a good thing to plant trees around a house for summer shade. He thought the tree had probably been planted to give protection from the west. Given its healthy state he saw no reason that it could not be there for 100 years.
He also referred in his witness statement[10] to the ACT Government position on trees and solar panels on Territory and Municipal Services website[11]:
While the ACT Government is actively promoting the use of passive solar energy in new developments and new development areas, issues relating to solar access in established areas will continue to be subject to assessment of individual circumstances. There is no intention to remove sound healthy trees solely to improve access to solar energy in established suburbs. However, where trees require pruning, this can, at times, improve solar capacity.

[10] Allan Moss, Witness Statement dated 11 February 2014, paragraph 2

[11] forests_/frequently_asked_questions_about_urban trees

Ms Besemeres referred the Tribunal to an earlier tribunal decision in Maciejewski v Conservator of Flora and Fauna,[12] in which the tribunal stated:
In order for the applicant to satisfy this criterion the Tribunal needs to be able to find from the evidence that the tree is substantially affecting the solar access to the applicant’s lease, not just to the applicant’s house or part of his house. This requires the Tribunal to consider the evidence of solar access to the whole of the perimeter of that lease during winter between the hours of 9 am and 3 pm as well as considering whether pruning could remedy any substantial lack of solar access. The Tribunal is also required to consider whether all other reasonable remedial treatments and risk measurements have been demonstrated to be ineffective….The Tribunal is not satisfied that 25% shade is substantial, as required by this criterion.
[12] [2013] ACAT 78, paragraphs 111-116

The respondent relied upon Mr Moss’s expert testimony, and paragraph 1 of his witness statement referred to in paragraph 43 above and contended that the tree does not substantially affect solar access to the applicant’s lease.
In relation to the applicant’s claim that leaf litter accumulated in his gutters and, during heavy rain, caused damage to his house; Mr Moss said the applicant had not produced any evidence to link the tree or leaves shed from it to any damage to meet criterion 1(c). Ms Besemeres submitted that the fact that the tree drops leaves on roof gutters and blocks down pipes, without further evidence does not amount to substantial damage to the building or structure or service.
In Mr Moss’s experience it was not usual to have a lot of debris or deadwood fall out of an oak unless it was stressed. He opined that northern hemisphere trees stand up better in the Australian climate. The oak has a tight cell structure; it is a tenacious tree which, in a hot dry year can shut down its system early.
Mr Moss said that his inspection on 25 November 2013 supported the respondent’s inspecting officer’s assessment report of 29 October 2013 that minor pruning in accordance with Australian Standard 4373 - ‘Pruning of Amenity Trees’- would be remedial treatment to satisfy ACTEW’s requirements of a clearance of 1.5 metres clearance from the high voltage power lines.
He gave evidence that a lessee should allow for a three year regrowth and opined that if trees near power lines were trimmed to 2.5 metres from the power lines that degree of pruning should fall within the definition of minor pruning for this tree. He further added that the tree the subject of this application should not require 2.5 metre clearance pruning with three yearly prunes. He thought it would be another year or two before the applicant had to prune the tree to ACTEW requirements.
Ms Besemeres submitted[13] that the applicant had not provided any evidence to suggest that the tree posed any risk to public or private safety, let alone an unacceptable risk or one that cannot be eliminated through appropriate pruning. She referred[14]the Tribunal to paragraph 6 of Schedule 1 of the Determination which provides examples of reasonable remedial treatment or measures for a regulated tree. The Determination does not limit the matters the Conservator may consider as reasonable remedial treatment. However, it does include a variety of forms of pruning that can have the effect of lessening wind resistance, reducing the weight of limbs, increasing light penetration, removing identified branches that encroach on utilities and buildings and improving solar access. It would be reasonable for the applicant to engage an arborist to undertake an annual risk and hazard assessment of the tree.
[13] Respondent’s Statement of Facts and Contentions, paragraph 16
[14] Respondent’s Statement of Facts and Contentions, paragraph 12 and paragraph 18
In relation to the cost of inspections and regular maintenance, Ms Besemeres referred[15] the Tribunal to the ACT Administrative Appeals Tribunal’s decision in Janvid Pty Ltd and Conservator of Flora and Fauna[16]and the changes to the criteria following that decision. In that decision, the tribunal was not satisfied that the cost of remedial measures proposed for addressing safety issues associated with the subject tree were reasonable because the tree was very large and annual inspections involving climbing the tree were recommended. Following that decision, paragraph 6 was included in the criteria. It is set out in paragraph 52 above.
[15] Respondent’s Statement of Facts and Contentions, paragraph 26
[16] [2002] ACTAAT 18
Ms Besemeres submitted[17] that criterion 1(d) (the location of the tree) has no application as the tree is a mature tree and unlikely to grow much larger. Appropriate pruning would ensure that the tree does not come in contact with the power lines. Even if the tree drops leaves on the roof gutters which enter downpipes as contended for by the applicant, this does not support the contention that the location of the tree is inappropriate. She submitted that it is entirely normal for a regulated deciduous tree to shed leaves. Ms Besemeres referred the Tribunal to another tribunal decision in Kelly v Conservator of Flora and Fauna [18](‘Kelly’) where the tribunal stated:

Apart from the problems with the gutters, however, there appears to be no damage to the house itself arising from the close proximity of the tree to the house. The question for the Tribunal therefore is whether the problems with the gutters justify removal of the tree. The need to clear gutters of debris from trees close to houses is common in the ACT and is usually accepted as a normal part of house and garden maintenance.

[17] Respondent’s submissions, paragraph 19
[18] [2009] ACAT 24 at [61]

The respondent contends that none of the approval criteria apply on the facts as put before the Tribunal; its position is supported by the advice of the TAP and that the correct and preferable decision remains to refuse the applicant’s application to remove the tree.

Consideration of Issues

The Tribunal’s consideration of the evidence in relation to the relevant criteria and its conclusions are as follows:
Criterion 1(b): The tree represents an unacceptable risk to public or private safety; and
Criterion 1(c): the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service; and
Criterion 1(d): the location of the tree is inappropriate given its potential size and growth habit (excluding remnant eucalypts).
The applicant raised a number of issues in relation to the tree which relate to the above three criteria. He is concerned that the tree is causing safety issues, particularly in relation to the proximity of the branches to the overhead ACTEW power lines. He is also concerned about the tree dropping branches and causing risks to his family members, including grandchildren, and people walking by the tree; and he is concerned about leaves from the tree falling on to the roof, blocking gutters and causing flooding in his house.
At the hearing the applicant said that, in windy or stormy weather, the tree can shed branches up to 1.5m in length and 7 centimetres in thickness. The Tribunal noted that the applicant had not referred to this in his witness statement or prior documentation. He did not present any evidence suggesting that a falling or fallen branch had struck anyone. Mr Moss’s evidence was that it would be unusual for a tree of this size to shed branches of this size and with this frequency unless the tree was under particular stress. The Tribunal noted that there was no evidence of this tree being under stress.
The applicant did not provide any photographic evidence or other evidence of internal flooding damage to his house. While the Tribunal accepts the applicant’s evidence that he had flooding in the middle of his house as recently as a fortnight before the hearing, in the absence of any independent expert evidence corroborating the damage and the cost of repair the Tribunal is unable to be satisfied to the requisite degree that the actual damage experienced by the applicant was caused by the blocking of the gutters rather than by something else like cracked tiles or damaged pointing; nor is the Tribunal able to be satisfied to the requisite degree that the damage experienced was substantial.
The Tribunal accepted the applicant’s evidence that he had installed mesh as a gutter guard; however, the applicant conceded that he had not consulted any suitably qualified tradesperson about the most appropriate remedial treatment. Mr Moss told the Tribunal that there were companies who recommend appropriate remedial treatment.
While the applicant had spent $3,000 shortly after he purchased the property in 2006 re-laying underground pipes which had apparently been blocked by the tree’s roots, he did not provide evidence of any damage to the house. Rather, he said he was not sure how much damage may have been done to the foundation of the house. In the absence of any evidence, (as opposed to speculation), regarding damage to the foundations the Tribunal cannot be satisfied that such damage has occurred or is threatened and that any such damage is substantial.
The applicant told the Tribunal he had pruned the tree’s branches in about 2008 in order to keep them clear of the power lines and had, apparently, not needed to trim them since. Mr Moss told the Tribunal that the tree would require trimming around every three years to comply with ACTEW’s power line clearance requirements. About six years has elapsed since the applicant had the branches pruned. The applicant, as lessee, has a duty to ensure that the tree remains clear of the power lines. If this is done there is no danger to public or private safety.
While the Tribunal is satisfied that the power lines are a substantial service and that the applicant’s house is a substantial structure, there was no compelling evidence before the Tribunal that would persuade it that the location of this tree was inappropriate; or that it represents an unacceptable risk to public or private safety, or that it was threatening to cause substantial damage to the power lines and/or to the applicant’s house.
The Tribunal accepted Mr Moss’s evidence that the tree was mature and healthy. The applicant did not provide any evidence that challenged such a finding.
Pruning of trees is a normal part of garden and property maintenance, as is removing fallen branches from rooves and leaves and other debris from the tree from gutters and downpipes.
The Tribunal is mindful that paragraph 6(3) of the Determination clearly sets out what is reasonable remedial treatment if branches encroach on utilities or buildings. If the Tribunal had been satisfied that branches had encroached on power lines and/or the property and had caused or would cause substantial damage to the building, structure or service; it would have also been necessary for the applicant to demonstrate that all reasonable remedial measures would be ineffective. There was no such evidence before the Tribunal.
Having considered all of the evidence, the Tribunal is satisfied and finds that Criteria (b), (c) and (d) have not been met.
Criterion 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 (excluding remnant eucalypts)
For the applicant to meet this criterion, the Tribunal has to be satisfied that the tree is substantially affecting solar access to the lessees lease during winter hours of 9am to 3pm. This criterion also requires the Tribunal to consider whether pruning is or is not sufficient to remedy the tree’s effect on the solar access.
The meaning of the word ‘substantial’ was considered in Kelly[19]. That tribunal observed that the meaning of the word ‘substantial’ is large, weighty, considerable, solid or big, and not trivial, minimal or nominal.
[19] At [57]
The tribunal considered the words in the criterion - ‘affecting solar access to the lessees lease’ in Maciejewski and concluded[20] that the tribunal must consider the evidence of solar access to the whole of the perimeter of that lease during winter between the hours of 9am and 3pm. That tribunal also considered[21] whether pruning could remedy any lack of solar access, and whether all other reasonable remedial treatments and risk measurements have been demonstrated to be effective.
[20] Maciejewskiv Conservator of Flora & Fauna [2009] ACAT 24 At [111]
[21] Respondent’s submissions dated 28 March 2014, paragraph 24
In his Response to Mr Allan Moss’s Submissions, the applicant took issue with the criterion requirement that the solar access be considered in relation to the lessee’s lease. He said[22]:
“Instead of looking at the percentage of the block, one should look at the percentage of the built-up area that is covered by the shading. Built up area is the one that needs heat gain from sun. The shading calculation by the percentage of block has no meaning, as residence is not spread on the whole block. One does not have to be an Einstein to understand this logic. (The block size is very large about 1700 square meter but residence is located on one side of the block. Percentage calculated of the block will hide the real issue.)
[22] Applicant’s response to Mr Allan Moss’s statement dated 27 February 2014, paragraph 7
The applicant’s case was based on the percentage of shade the tree cast over the solar panels on his house, not over the lease or the whole of the perimeter of that lease. The language of the criterion is clear. The Tribunal is required to consider whether the tree is affecting solar access to the lessee’s lease, not limited to that part of the lease or block on which the residence is built. The Tribunal does not agree with the applicant’s submissions in the previous paragraph.
The applicant provided numerous photographs (dated 30/09/2013), diagrams and data which included his records of solar access throughout the year. The Tribunal is required by this criterion only to consider winter solar access to the lease between 9am and 3pm. The Respondent provided photographs with the degrees of the tree’s shading at hourly intervals between 9am and 3pm on 21 June, the winter solstice over the lease.
The Tribunal was satisfied from the respondent’s photographs that the tree is shown as in leaf and that Mr Moss’s evidence is that approximately 75% of sunlight would shine through the canopy in winter when the tree is leafless.[23] These photographs showed the tree’s shadow based on there being no sun penetration through the canopy. The only expert evidence before the Tribunal in relation to the area of the block or lease within the shadow area was given by Mr Moss who referred to these photographs. His evidence was not successfully challenged. Not allowing for sunlight penetration through the branches in winter, his evidence of the time of day, area of shading of the block and percentage of the block shaded was as follows:
[23] See Attachment 1 to Statement of Allan Moss dated 27 February 2014.

Time Shadow area Percentage of block

9am 110m² 7%

10am 155m² 10%

11am 175m² 11%

Noon 251m² 16%

1pm 305m² 20%

2pm 358m² 23%

3pm 370m² 24%

Mr Moss said that at 3pm the tree shadow would just begin to fall on the solar panels.
The applicant submitted[24] that Mr Moss’s report had done a great favour (to the applicant) as the indicative area under shade covers the main part of the built up area of the residence. He said that this means that during winter most of the residential area does not get heat benefit from solar radiance, as he had claimed in his initial submission. The Tribunal has already referred above to the clear words of the criterion and is not persuaded that it should only consider the effect of the shading on the built up area of the residence.
[24] At paragraph 8 of the applicant’s response to Mr Allan Moss’s statement
The applicant said that the block area was 1700 m². Using the percentages from the above table the Tribunal is not satisfied that 24%, the maximum area shaded at 3pm on 21 June, which is 408m², amounts to substantial shading.
While the applicant has experience in solar panels and solar cells in space, the Tribunal accepts the respondent’s submission that neither the applicant nor Mr Leone was in a position to give independent evidence as to the effect of the tree on his solar panels.
A common theme running through the application was the applicant’s financial hardship, primarily relating to his lack of return on his $10,000 investment in installing the solar panels. It is clear from reading the criteria, that financial hardship is not an allowable criterion. The applicant had previously unsuccessfully sought approval to conduct a major prune of this tree. Subsequent to that decision he decided to install solar panels. He gave evidence that he knew, from a conversation with the company representative who inspected his property and installed the panels, before installing the solar panels, that the tree would interfere with the efficiency of the solar panels. He knowingly took on that risk by having the panels installed.

The Tribunal is satisfied and finds that criterion 1(e) has not been met.

Criterion 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.

Exceptional circumstances

While the applicant did not specifically raise his financial hardship as an exceptional circumstance, during the hearing, he did refer numerous times to the financial burden he had incurred and believed he would continue to incur if the tree remained on his property. This included the $3,000 he had spent on the drainage shortly after purchasing the property and the pruning cost of $1,800 he paid to clear the power lines in about 2008. Every time the tree was pruned in the future he would have to pay about $450 for ACTEW to switch off the power. He would have to employ and pay someone to clear his gutters and remove any fallen tree branches from the roof. He had incurred very high electricity bills and had decided to spend $10,000 on installing the solar panels to save the electricity costs. Instead of the solar panels being cost neutral they had failed to achieve their full capacity because of the tree shading the solar panels, not only in winter, but throughout the year.
The Tribunal is not satisfied that the applicant’s claim of financial hardship amounts to exceptional circumstances. The TAP advice was clear. It stated that only very minor pruning would be required to keep the tree clear to ACTEW standards.
In any event, the Tribunal has already considered this issue, under criterion 1(e) above. There are no additional circumstances that would justify an alternative conclusion.

Surrounding landscape

The evidence in the initial tree assessment report is that the tree’s landscape value was 9 out of a possible 10. The tree is described as mature and in good condition. The Tribunal has referred, above, to the ACT Government’s position on trees and solar energy and notes that there is no intention to remove sound healthy trees solely to improve access to solar energy in established suburbs.
While the tree has previously had at least one major prune, and possibly more than one, to meet ACTEW requirements it does not follow that “it now negatively impacts the natural streetscape from the main road (Wilkins St) – the main view of the tree in the streetscape – a full half of the tree is missing. This definitely makes the tree look ugly or lopsided and certainly detracts from the aesthetics of [the applicant’s] local urban forest.”[25]
[25] Applicant’s submissions dated 28 March 2014, pages 4 -5
The Tribunal has concluded, in light of the TAP report, the expert evidence and its own observations at the site inspection, that the tree is important in the surrounding landscape. The Tribunal is satisfied that this reinforces the assessment that the tree should not be removed.

Conclusion

The Tribunal has noted, above, the objects of the Tree Act. The tree is a mature tree in good condition. Such trees may not be removed unless strict conditions are met. As required by section 25 of the Tree Act, the Tribunal has considered all of the evidence in relation to the relevant approval criteria and is satisfied that the application does not meet any of the criteria. As in Kelly, this Tribunal has not been shown that all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.
The Tribunal has concluded that none of the conditions for removal have been satisfied and the Conservator’s decision should be confirmed.
...........………………………………..
Ms E. Symons - Presidential Member

PUBLICATION DETAILS

FILE NUMBER:	AT 03 of 2014
PARTIES, APPLICANT:	DHARMA SHARMA
PARTIES, RESPONDENT:	CONSERVATOR OF FLORA AND FAUNA
COUNSEL APPEARING, APPLICANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPLICANT
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Ms E. Symons
DATES OF HEARING:	21 March 2014
PLACE OF HEARING:	Canberra

of criterion 1(3)(c).

Time	Shadow area	Percentage of block
9am	110m²	7%
10am	155m²	10%
11am	175m²	11%
Noon	251m²	16%
1pm	305m²	20%
2pm	358m²	23%
3pm	370m²	24%