The Owners Units Plan 2849 v Conservator of Flora and Fauna (Administrative Review)
[2016] ACAT 106
•14 September 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THE OWNERS UNITS PLAN 2849 v CONSERVATOR OF FLORA AND FAUNA (Administrative Review) [2016] ACAT 106
AT 21 of 2016
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 in decline – 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; consideration of each criterion – no criterion met
Legislation cited: Tree Protection Act 2005, ss 21, 25, 106, 107, 107B
Subordinate
legislation: Tree Protection (Approval Criteria) Determination 2006 (No 2) (DI 2006-60), Schedule 1, criterion 1, paragraphs 1 & 3
Cases cited: Maciejewski v Conservator of Flora and Fauna [2013] ACAT 78
Tribunal: Senior Member A Davey
Date of Orders: 14 September 2016
Date of Reasons for Decision: 14 September 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 21/2016
BETWEEN:
THE OWNERS UNITS PLAN 2849
Applicant
AND:
CONSERVATOR OF FLORA AND FAUNA
Respondent
TRIBUNAL: Senior Member A Davey
DATE: 14 September 2016
ORDER
The Tribunal orders that:
1. The decision under review is confirmed.
………………………………..
General President L Crebbin
for and on behalf of Senior Member A Davey
REASONS FOR DECISION
This is an application to the Tribunal for review of a reconsidered decision made by the Conservator of Flora and Fauna (the respondent) on 2 March 2016 to refuse approval for the removal of a regulated tree located on block 7 section 74 Watson, under section 107 of the Tree Protection Act 2005 (the Tree Protection Act). The reconsidered decision upheld a previous decision under section 25 of the Tree Protection Act to refuse a tree damaging activity.
The applicant is The Owners Unit Plan 2849, located at block 7 section 74 Watson. On 18 December 2015, an agent of the applicant (Mr Russell Snedden of Specialised Arbor Pty Ltd) applied to the respondent for approval to damage three different trees by removing them.[1] The first tree (and the subject of this review application to the Tribunal) is a large remnant Eucalyptus melliodora, commonly known as Yellow Box, located in an open green space area west of unit block 143-150. The reasons cited in the original application in relation to this tree (tree 1) were that:
efforts have been made to retain this tree, however branch shedding continues; crown is 80-90% diseased (gall/canker) and failures continue to occur as a result; multiple failures have occurred in the past 12 months and permission to remove has previously been declined; tree represents unacceptable risk to public safety as failure is occurring intermittently where damage & disease exists; species & location inappropriate.[2]
The application was received by the respondent on 7 January 2016.
[1] T documents, pages 4-15; application ID 31617
[2] T documents, page 6
On 12 January 2016, tree assessment reports were prepared after inspection of the site. The relevant report[3] found tree 1 to be in good health, noting that (a) there were unapproved paths beneath the canopy in the Tree Protection Zone (TPZ) (5 or so years old), (b) gall/canker on 70% of limb, (c) good vitality, and (d) previous limb drop; but nevertheless concluded that the tree did not meet any of the criteria set out in schedule 1 of the Tree Protection (Approval Criteria) Determination 2006 (No 2) (DI 2006-60) to support its removal. It was recommended that the application in relation to tree 1 be rejected.[4]
[3] T documents, pages 16-17, 22, 27, 29-40
[4] T documents, pages 16-17
On 22 January 2015, a delegate of the respondent refused the application for the tree (tree 1) under section 25 of the Tree Protection Act, on the grounds that it was not established that any of the criteria for removal set out in schedule 1 of the Tree Protection (Approval Criteria) Determination 2006 (No 2) (DI 2006-60) were satisfied.[5]
[5] T documents, page 41
On 8 February 2016, Mr Timothy Maly of City Strata Management Pty Ltd on behalf of the applicant submitted an application for reconsideration of the decision in relation to tree 1 of the original application, hereinafter referred to as ‘the tree’[6] under section 106 of the Tree Protection Act, on grounds of unacceptable risk, that the tree has dropped three reasonably large branches, and that the unions of the tree are diseased and will continue to pose a threat.
[6] T documents, pages 45-51
Mr Richard Hart conducted an inspection of the tree and prepared a report dated 22 February 2016 for the Tree Advisory Panel (TAP).[7] This report concluded that the tree does not meet any of the criteria for approval to remove it, and recommended that the original decision be confirmed.
[7] T documents, pages 52-57
At a TAP meeting on 25 February 2016 the panel considered the application for reconsideration of the decision and recommended refusal of the application on the basis that in the opinion of the panel none of the criteria for approval had been satisfied.[8] The panel also recommended that the tree be assessed regularly by a qualified arborist to undertake a hazard and risk assessment every two or three years or when deterioration is noticed. Also the gall attack and any impact from the installation of the lighting should continue to be monitored.[9]
[8] T documents, page 61
[9] T documents, page 61
The respondent then made a reconsidered decision, dated 2 March 2016, to uphold the original refusal.[10]
[10] T documents, page 64
On 4 April 2016, the applicant applied to the Tribunal under section 107B of the Tree Protection Act for review of the respondent’s reconsidered decision.
To remove any doubt that the applicant is eligible to seek review of the reconsidered decision, on 05 August 2016 the respondent sent a copy of the original refusal dated 22 January 2016, and the internal review notice, to the applicant.
The hearing
Mr Steven Maxwell, Senior Strata Manager at City Strata Pty Ltd, represented the applicant. He relied on the evidence of Mr Mark Hynes, Ms Christine Rampling and Mr Kieran Wallace. Ms Kristy Katavic, of counsel, represented the respondent, instructed by Ms Skye Campbell-Ward from the ACT Government Solicitor. Dr Peter Coyne gave evidence for the respondent.
The hearing on 29 August 2016 commenced with a site inspection. The applicant was represented at the site inspection by Mr Maxwell, but the applicant's main witnesses were not available at that time. For the site inspection, Mr Maxwell was assisted by Dr Justin Graf and Mr Daniel Viola, both members of the Executive Committee (and residents), who explained some of the residents’ concerns. The Tribunal’s attention was drawn to the location of the tree in relation to pathways, carparks, buildings, benches, grassed areas, and landscaping. The main area beneath the tree canopy had been fenced off for months, and within the fenced off area there was a large branch that had fallen some months earlier. Dr Coyne pointed out various features of the tree which in his view were indicative of good health. The hearing continued at the Tribunal’s premises later the same morning. At the conclusion of the hearing the Tribunal reserved the decision.
Applicable law
Section 21 of the Tree Protection Act provides for the Minister to determine the criteria to be applied when considering an application for approval for a tree-damaging activity. On 4 April 2006 the Minister for the Environment made the Tree Protection (Approval Criteria) Determination (No.2) (the determination) for the purpose of section 21. The relevant criteria for consideration in this case are in paragraphs 1-3 of criterion 1 of schedule 1:
(1)The Conservator of Flora and Fauna (the Conservator) may give an approval to damage a regulated tree under section 25 when:
(a) the tree is in decline and its life expectancy is short; or
(b) the tree represents an unacceptable risk to public or private safety; or
(c) the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service; or
(d) the location of the tree is inappropriate given its potential size and growth habit (excluding remnant eucalypts); or
(e) the tree is substantially affecting solar access to the lessees lease, or neighbouring lease, during winter between the hours of 9am to 3pm and pruning is not sufficient to remedy this (excluding remnant eucalypts); or
(f) the tree is causing an allergic reaction to an occupant of the lease, or neighbouring lease, and the claim can be supported by certification from a relevant medical specialist; or
(g) where the tree is part of a close planting of a number of trees, the removal of the tree will allow the other trees to develop; and
all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.
(2)The Conservator may also give an approval under section 25 of the Tree Protection Act 2005 to remove a tree if the tree is located on a block of less than or equal to 1200m2 and is a species listed in Schedule 2.
(3)When deciding whether the criteria in paragraph 1 are met, the Conservator may consider:
(a) any exceptional circumstances that have been raised by the applicant, taking into account advice from the Tree Advisory Panel;
(b) the importance of the tree in the surrounding landscape; and
(c) if the tree is a species listed on schedule 3, whether the tree has ecological importance to the local environment.
Issues
The issues for determination are:
(a)whether any of the criteria in paragraph 1 of criterion 1, schedule 1, of the determination are satisfied (taking into account paragraph 3, as applicable); and
(b)if so, whether the second condition of paragraph 1 (relating to whether all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective) has also been satisfied.
Agreed facts
The tree is a regulated tree under the Tree Protection Act and it is not disputed that its removal requires approval. It has been identified as a Eucalyptus melliodora, commonly known as Yellow Box, which is listed as a local ecologically beneficial species in schedule 3 of the determination for the purposes of paragraph 1 criterion 3 (c).
The applicant’s evidence and contentions
The applicant sought review of the decision on paragraph 1 criteria (a), (b) and (c), with respect to decline, public and private safety (in the form of risk from falling branches), and damage to structures.
Mr Mark Hynes gave evidence for the applicant via telephone during the hearing, and had provided a written statement.[11] Mr Hynes is the principal of Territory Horticulture, which is abusiness providing contract grounds maintenance to the applicant at the site including the tree. Mr Hynes is an Australian Qualification Framework (AQF) level 5 qualified horticulturalist, but points out that he is not an arborist. Based on his observations of the incidence of branch fall from the tree, advice (apparently verbal) to him from Mr Russell Snedden of Specialised Arbor Professional Tree Services, together with his understanding of his responsibilities as an employer, Mr Hynes has now refused to allow his employees to work in the area beneath the tree. The advice Mr Hynes relied on in coming to his decision was not directly available to the Tribunal. Mr Hynes’ written statement included a paragraph stating:
“I questioned Russell onsite about the tree. He indicated to me that the area inside the caution tape was a dangerous area...he told me that the tree in question has 80-90% rot/decay in it and is a dangerous tree. The presence of insect or fungal gall seriously weakened the tree and made it unpredictable. He told me that he would not be working or playing under the tree. He also said that the people making the decision (to keep the tree) were looking from the ground and had no interest in looking at the problems from a better vantage point. Russell had been in the tree and observed the problems”.[12]
[11] Witness statement of M Hynes, filed 11 July 2016, exhibit A1, pages 1-2
[12] Witness statement of M Hynes, paragraph at bottom of page 1 & top of page 2; the ellipsis is in the original
Ms Christine Rampling of Specialised Arbor Professional Tree Services gave evidence for the applicant via telephone during the hearing, and had provided a detailed written statement.[13] Ms Rampling is an AQF level 3 qualified horticulturalist & AQF level 5 arborist, and a licenced Quantified Tree Risk Assessment (QTRA) assessor. The analysis undertaken by Ms Rampling concluded that it was possible and reasonable to retain the tree, that the QTRA methodology indicated it presented an acceptable risk, and that this meant that no remedial or mitigating measures were required. Her report noted that while galls were common in the crown of the tree, the branch failures were not occurring at these gall sites. The canopy and foliage were assessed as adequate. The branch unions indicate well-formed branch attachments, and she did not observe structural weaknesses. The epicormic growth and response to pruning cuts that were evident in the tree were indicative of general health. She did not observe decay or rot, and on questioning she said she would not agree with the assessment of 80-90% decay or rot. When asked whether aerial inspection should have been undertaken, Ms Rampling indicated that if there had been any doubt she would have recommended aerial inspection, but that she doubted it was warranted, and doubted on the evidence she had seen that it would make a substantial difference to her conclusions. She said the tree does not pose a threat of damage to buildings.
[13] Arboricultural Assessment of C Rampling, undated, filed on 11 July 2016, exhibit A2, pages 1-24
Ms Rampling's report included extensive consideration of risk factors.[14] The QTRA methodology that she applied “is a risk management tool specific to tree assessment. It considers internationally recognised levels of risk tolerance and provides a decision making framework to balance the benefits of the tree, the risk posed by the tree and the cost of mitigation. Use of this system allows a tree owner to demonstrate that they have applied reasonably practicable steps to manage the risk posed by their trees”.[15] Ms Rampling stated that the calculated QTRA risk value was 1/1,000,000, based on the assessed target exposure, the consequence of an incident, and the other attributes taken into account by the tool, and that this was in the acceptable range. She gave examples of other routinely-accepted risks in modern Australian life which have significantly greater incidence than tree-related fatality. On questioning, Ms Rampling was insistent that not only did this particular tree not present an unacceptable risk, but that no remedial or mitigation measures were required.
[14] Arboricultural assessment filed 11 July 2016 by C Rampling, pages 12-14
[15] Arboricultural assessment filed 11 July 2016 by C Rampling, page 12
Mr Kieran Wallace of ACT Tree Felling also gave evidence for the applicant via telephone during the hearing, and had provided a detailed written statement.[16] Mr Wallace is an AQF level 3 qualified arborist, currently undertaking study towards a higher AQF level, and a QTRA assessor. He noted that the major branch unions show no sign of major defect when viewed from the ground, and noted the gall like growth evident in the third and fourth order branches.[17] He inspected a recently fallen limb, noting that gall was present on the outer extremities of the branch but not anywhere near the failure site.17 He investigated the integrity of wood in a gall area and found no decay present.17 His conclusion was that the tree presents as an overall healthy specimen. His report also commented on the branch shedding, and made the point that trees are by their nature shedding organisms, though in this case the propensity of the tree to shed limbs might actually have been increased by its recent management. In his verbal evidence he said it was not unusual for a large tree to shed a large branch. On questioning as to whether aerial inspection should have been undertaken, he said that if aerial inspection appeared to be needed he would have called for it.
[16] Tree report of K Wallace dated 28 June 2016, exhibit A3, pages 1-15
[17] Tree report of K Wallace dated 28 June 2016, exhibit A3, page 4
In his verbal evidence Mr Wallace said he was aware this tree is a remnant that cannot easily be replaced, and that it is of a species that is defined as ecologically significant. He outlined the many indicators of poor tree health but said this specimen was solid and sound, with little evidence of rot, and he specifically rejected the proposition there was 80-90% decay or rot, and stated the tree definitely did not have a short life expectancy.
Mr Wallace also gave extensive consideration to risk issues[18], again applying the QTRA framework, utilising explicitly conservative parameters, and also concluded that this particular tree calculated a Risk of Harm from the Tree as 1/1,000,000, which is defined in the QTRA system as broadly acceptable and “it would indicate that it is not necessary to outlay further expense to reduce the risk further as it is already low”.[19] In his verbal evidence he also commented that changing the target was always more effective, and usually cheaper, than eliminating the risk. His advice was that there are no grounds for removal of this tree.
Respondent's evidence and contentions
[18] Tree report of K Wallace, pages 5-7
[19] Tree report of K Wallace, page 7
The respondent contended that it had not been established that any of the criteria had been met, and that the Tree Protection Act did not authorise removal of a protected tree on the basis of assertion or speculation. The legislation in this case requires the applicant to demonstrate that the criteria are met, and to provide the data, analysis and persuasive arguments to satisfy the relevant criteria. The respondent also contended that paragraph 3 (c) of the criteria, and the objects of the Tree Protection Act, require a high standard of analysis to justify the exercise of discretion for removal of remnant trees of species listed in schedule 3 of the criteria, as is the case here.
The respondent contended that the tree did not meet criterion (a) (relating to decline) because it is an overall healthy specimen,[20] has a dense crown,[21] any infestations are not of a magnitude to cause ongoing problems with the tree or significantly impacting the health of the tree[22], and that no decay is present.[23]
[20] Arboricultural assessment filed 11 July 2016 by C Rampling, page 10; witness statement of K Wallace, page 4 & witness statement of P Coyne, page 2
[21] Witness statement of P Coyne, page 2 at [6]
[22] Arboricultural assessment filed 11 July 2016 by C Rampling, page 10; tree report of K Wallace, page 4 & witness statement of P Coyne, page 2
[23] Arboricultural assessment filed 11 July 2016 by page 10; tree report of K Wallace, page 4 & witness statement of P Coyne, page 2
The respondent also contended that the relevant consideration under criterion (b) (relating to risk) is not the elimination of all risk, but rather the elimination of unacceptable risk.
The respondent relied on the statement of, and oral evidence from, Dr Peter Coyne. Dr Coyne is chair of the Tree Advisory Panel, has professional qualifications in forestry and extensive relevant professional experience. He tendered a detailed written statement[24] and gave evidence in which he concluded the application did not meet any of the criteria, including under paragraph 1(a), (b), or (c).
[24] Witness statement of P Coyne, dated 21 July 2016, exhibit R1, pages 1-19
Dr Coyne concluded that the tree is healthy with a dense crown, the branch structure appears strong, smaller branches throughout the crown have a lot of canker[25] but this does not appear to cause any weakness, the tree contains negligible dead wood, and that fungal or insect attack did not appear to be significant.[26]
[25] While the terminology used by witnesses differed, it became evident during the hearing that the terms “gall” and “canker” were practically synonymous for issues of relevance to this tree
[26] Witness statement of P Coyne, pages 2-3
Dr Coyne gave extensive consideration to risk issues, including an attachment.[27] He considered the risk to be quite acceptable, and not to require any mitigation or remedial treatment, but at most to warrant measures to discourage people from spending much time under the tree.[28] He noted that simple measures were available that would further reduce the exposure, such as relocation of pathways or carparks.
[27] Witness statement of P Coyne, pages 3-5, 12-16
[28] Witness statement of P Coyne, page 4
Dr Coyne said in his verbal evidence that he had read the reports from Ms Rampling and Mr Wallace, and did not disagree with anything they had said. He disagreed strongly with the statement attributed to Mr Snedden in Mr Hynes’ evidence, stating there was no evidence that gall has weakened the tree. He also disagreed with Mr Hyne's opinion about risk. On questioning as to whether aerial inspection should have been undertaken, he said the practical approach is to inspect from the ground and call for aerial inspection when there is evidence to warrant it. There was no evidence that aerial inspection was needed. He had not observed any of the indicators of poor health in this tree.
During questioning, Mr Maxwell suggested to Dr Coyne that mitigation of risk is going to involve a lot of money. Dr Coyne responded that Ms Rampling and Mr Wallace had both said the risk was not sufficient to justify any mitigation. He added that under the (Tree Protection) Act, approval can only be given if mitigation has been shown to be ineffective.
Consideration of issues
The Tribunal’s consideration of the evidence in relation to the relevant paragraph 1 criteria follows. Criteria (d), (e), (f) and (g) are not relevant and were not relied upon by the applicant. The remaining criteria are (a), (b), and (c).
The applicant did not address criterion (a) relating to tree decline in any detail, but in any case the three tree experts were all clearly of the view that the tree is healthy, so eligibility under this criterion was not substantiated.
The applicant raised a number of public and private safety issues in relation to the tree under criterion (b), mainly the risk of falling branches, especially onto people. The respondent submitted that all three of the experts had concluded the risk was acceptable using established and relevant risk assessment tools, and had recommended that mitigation or remedial measures were not required.
It was not explained why the aborist Mr Russell Snedden of Specialised Arbor Professional Tree Services, who had submitted the original application on behalf of the applicant, and who was the source of some of the advice to Mr Hynes, was not available as a witness. Some of the descriptors he had used in the original application (which in any case was very brief), and those reported by Mr Hynes, are similar, but it was not possible to explore the context of Mr Snedden’s remarks, or to ask questions about them. For example, the original application used the words “crown is 80-90% diseased (gall/canker) and failures continue to occur as a result”.[29] On the face of it, this implies an expression of professional opinion that there is a causal connection between the (branch) failures and the extent of gall/canker. But all the other experts (who tendered written statements and were available for questioning) explicitly rejected the suggestion that gall/canker was a significant contributor to branch failure. Mr Hynes may in good faith have interpreted some statement made to him to mean he was being advised that the tree represented an unacceptable risk. But in the absence of a full written statement from Mr Snedden, and the capacity to question him about it, it is difficult to draw any conclusion. The Tribunal notes the words used by or attributed to Mr Snedden but cannot otherwise give them much weight.
[29] Tribunal docs, page 6
Ms Rampling, Mr Wallace and Dr Coyne provided detailed and completely consistent analysis that supports a conclusion under criterion (b) that the tree does not present an unacceptable risk.
Regarding damage to structures under criterion (c), while it was clear from the evidence that branches had fallen in the past, it was not evident that significant damage had resulted. One example mentioned related to a vehicle, but details of the extent of damage were not provided. The tree does not overhang or appear to threaten any substantial building, structure or service. Eligibility under this criterion was not substantiated.
The applicant did not seek to argue there were exceptional circumstances for the purposes of paragraph 3 (a) of the criteria.
Conclusion
Criteria (d), (e), (f) and (g) are not relevant to this case and were not relied upon by the applicant.
It is noted that the evidence of the three tree experts (two called by the applicant, and one called by the respondent) is completely consistent, that the tree is healthy, that it does not represent an unacceptable risk, and that it is not causing or threatening to cause substantial damage. The Tribunal is faced with differing opinions only to the extent that some words used by an arborist who was not available to participate in the hearing appear to be inconsistent with the opinions of the several witnesses who did participate. The Tribunal must prefer the evidence of the three experts who were contributors to the hearing over someone who was not. As in Maciejewski[30], where appropriately qualified evidence is not successfully challenged, the Tribunal is obliged to give it considerable weight.
[30] Maciejewski v Conservator of Flora and Fauna [2013] ACAT 78 at [104]
The Tribunal finds that it is not demonstrated that the tree meets any of criteria (a), (b) or (c).
Mr Maxwell submitted that the cost of remedial measures was an imposition by government on landholders, and he thought this was unreasonable. The Tribunal notes that the criteria for removal do contemplate consideration of cost. Where one or more of the criteria are met, then the issue of the reasonableness (which includes cost) of the remedial or mitigating treatment would arise, though it does not necessarily mean the cheapest option is the most reasonable one. However, since the unanimous opinion of the three qualified expert tree witnesses is that no remedial measures are necessary, cost of any measures actually undertaken in this case could not be attributed to the requirements of the Tree Protection Act.
Even if one or more of the criteria had been met, the Tribunal is also satisfied that it has not been demonstrated that “all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective”, as is required by the second part of paragraph 1 of the criteria.
None of the conditions of paragraph 1 of criterion 1 are demonstrated.
The Tribunal has concluded that none of the conditions for removal have been satisfied and the Conservator’s decision should be confirmed.
………………………………..
General President L Crebbin
for and on behalf of Senior Member A Davey
HEARING DETAILS
FILE NUMBER: | AT 21/2016 |
PARTIES, APPLICANT: | Owners Units Plan No 2849 |
PARTIES, RESPONDENT: | Conservator of Flora and Fauna |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | Ms K Katavic |
SOLICITORS FOR APPLICANT | |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Senior Member A Davey |
DATES OF HEARING: | 29 August 2016 |
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice & Procedural Fairness
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Legitimate Expectation
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