Trotter v Conservator of Flora & Fauna (Administrative Review)
[2022] ACAT 19
•6 December 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
TROTTER v CONSERVATOR OF FLORA & FAUNA (Administrative Review) [2022] ACAT 19
AT 75/2021
Catchwords: ADMINISTRATIVE REVIEW – reconsidered decision by Conservator of Flora and Fauna to refuse approval to remove a regulated tree – criteria in Tree Protection (Approval Criteria) Determination 2006 (No 2) whether tree represents unacceptable risk to public or private safety – whether the location of the tree is inappropriate given its potential size and growth habit – whether tree is substantially affecting solar access – whether all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective
Legislation cited: ACT Civil and Administrative Tribunal Act2008 s 9
Tree Protection Act 2005 ss 19, 21, 25, 106, 107
Cases cited:Bozin v Conservator of Flora and Fauna [2010] ACAT 91
Egan v Conservator of Flora and Fauna [2016] ACAT 27
Pinkas v Conservator of Flora and Fauna [2018] ACAT 92
Wickerson v Conservator of Flora and Fauna [2018] ACAT 43
Tribunal:Member W Hawkins
Date of Orders: 6 December 2021
Date of Reasons for Decision: 8 March 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 75/2021
BETWEEN:
SALLY TROTTER
Applicant
AND:
CONSERVATOR OF FLORA & FAUNA
Respondent
TRIBUNAL:Member W Hawkins
DATE:
ORDER
The Tribunal orders that:
The decision of the respondent to refuse permission for removal of the tree is confirmed.
…………signed………..
Member W Hawkins
REASONS FOR DECISION
The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current member.
This is an application to the Tribunal for review of a reconsidered decision by the Conservator of Flora and Fauna (the respondent) dated 13 July 2021 to not grant Ms Sally Trotter’s (the applicant) request for the removal of a regulated tree protected under the Tree Protection Act 2005 (Tree Protection Act). The respondent’s decision is referred to in these reasons as ‘the reconsidered decision’. The reconsidered decision upheld a previous decision under section 25 of the Tree Protection Act to refuse a tree damaging activity.
The tree under review is an Cedrus deodara commonly known as deodar or Himalayan cedar (the tree). The tree is located in the front yard of the applicant’s residential block at Block 6, Section 21, in Cook in the Australian Capital Territory (the property). The applicant is the lessee of the block and has applied for the review.
On 16 April 2021, the applicant submitted to the respondent an application for approval of a tree-damaging activity, namely the tree felling or removal of the tree.[1]
[1] T-documents pages 63-71
On 23 April 2021, Dr Peter Coyne, then Chair of the Tree Advisory Panel conducted a field inspection of the property. He then prepared a report on the application, finalising it on 25 April 2021.[2]
[2] T-documents pages 75-86 and transcript of proceedings 26 November 2021, page 50
On 29 April 2021, Mr Mark Diehm, delegate of the respondent, refused the application (the original decision).[3]
[3] T-documents page 100
On 14 May 2021, the applicant applied to the respondent for reconsideration of the original decision under section 106 of the Tree Protection Act.[4] In accordance with section 107 of the Tree Protection Act, the respondent asked the Tree Advisory Panel for advice regarding the application for reconsideration.
[4] T-documents pages 108-116
On 17 June 2021, Ms Christine Rampling of the Tree Advisory Panel conducted a field inspection of the property. She prepared a report on the application for reconsideration and finalised the same on 25 June 2021. The report concluded that the tree does not meet any of the criteria for approval to remove it and agreed with the original decision.[5] The Tree Advisory Panel endorsed the report on 28 June 2021.[6]
[5] T-documents pages 130-134
[6] T-documents page 134
On 13 July 2021, the respondent decided under paragraph 107(3)(b) of the Tree Protection Act to confirm the original decision (the decision under review)[7]. Notice of the decision under review was sent to the applicant on 13 July 2021.[8]
[7] T-documents page 171
[8] T-documents pages 71-174
On 10 August 2021, the applicant filed in the tribunal an application for seeking review of the decision pursuant to section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) and section 107B of the Tree Protection Act. [9]
The hearing
[9] T-documents pages 1-60
The applicant represented herself. She gave evidence, as did Ms Michelle Stuckey, a next-door neighbour to the applicant. Mr Dean Ager from the ACT Government Solicitor represented the respondent. Dr Peter Coyne gave evidence for the respondent.
The hearing on 26 November 2021 commenced with a site inspection. The Tribunal’s attention was drawn to the tree’s branch structure; overhang of some branches to Ms Stuckey’s driveway; partial shadowing of Ms Stuckey’s home; lack of grass underneath the tree; a mushroom identified as an amanita muscaria ( fly agaric) mushroom located about a metre from the base of the tree; the scale or size of the tree in relation to block size; an overhanging branch in the applicant’s driveway; and the position of the tree in relation to the street and structures. The hearing continued at the tribunal’s premises later the same morning. At the conclusion of the hearing the Tribunal reserved its 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 of the Tree Protection Act. The relevant criteria for consideration in this case are in paragraphs (1)-(3) of criterion 1 of schedule 1 which state:
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 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 whether approval may be given to remove the tree by reference to the criteria in the determination, in particular 1(1)(b), (d), and (e) and all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective and considering any exceptional circumstances under criterion 3(a).
It is the applicant who is required to demonstrate that at least one of the criteria has been met, and if a criterion is met, that all other remedial and risk mitigation measures are ineffective.[10]
Agreed facts
[10] Bozin v Conservator of Flora and Fauna [2010] ACAT 91 and Pinkas v Conservator of Flora and Fauna [2018] ACAT 92
The tree is a regulated tree and therefore a protected tree under the Tree Protection Act and it is not disputed that its removal requires approval.[11]
The applicant’s evidence and contentions
[11] Respondent’s submissions, page 5 at [25] and T-documents pages 75-86
The applicant sought review of the decision under review on criteria (b) unacceptable risk to public or private safety; (d) location of the tree is inappropriate; and (e) substantial effect on 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. The applicant asserted that all three of the criteria (b), (d) and (e) were satisfied.[12]
[12] Applicant’s submissions dated 18 October 2021
The applicant said that she has owned her property at Cook since May 2017 but has lived in the property since December 2019 with her two children.[13]
[13] Transcript of proceedings 26 November 2021, page 12
The applicant had originally applied to remove the tree about 12 months previous to the hearing and that was rejected. The applicant then had discussions with presumably persons in the Tree Protection Unit and as a result of those discussions became aware of the criteria.[14]
Criterion (b) the tree represents an unacceptable risk to public or private safety
[14] Transcript of proceedings 26 November 2021, page 8
The applicant gave evidence that the tree had dropped a number of limbs, one in 2017 and another in May 2021. The applicant strongly stated that her children do not want her to be under the tree at all, that they did not want to be “double orphans” having lost their father to leukaemia and were accentuated to risk in light of his death from a rare cancer.[15] She gave evidence that every time the wind blows strongly, she and her children wonder whether “is something going to come out of the tree”.[16]
[15] Transcript of proceedings 26 November 2021, page 12
[16] Transcript of proceedings 26 November 2021, page 13
The applicant gave evidence she had been told by electricians that her eaves were made of bonded asbestos and that if a limb or the tree itself fell on her house, that it could break the bonded asbestos in her eaves.[17] This caused concern as she and her family would be exposed to the broken bonded asbestos.[18]
[17] Transcript of proceedings 26 November 2021, page 15
[18] Transcript of proceedings 26 November 2021, page 14
The applicant emphasised the ‘psychological threat’ from the tree and this was evidenced by her and her children’s behaviour. This included herself and her children not wanting to be in the front yard, nervousness in excessive wind, and her son not wanting her to be in the front yard at all.[19]
[19] Transcript of proceedings 26 November 2021, page 15
When asked in cross examination whether she thought the tree was in good health, the applicant responded by saying that she had started to notice brown patches in the foliage.[20] In further cross examination, the applicant was taken to the report of Mr du Boulay from Canopy Tree Experts dated 21 September 2021,[21] and in particular where Mr du Boulay wrote:
Pruning or removing the tree in response to past branch failures is unlikely to reduce any perceived risk of harm because there is no current evidence that suggests further branch failures will occur during normal weather conditions.’[22]
[20] Transcript of proceedings 26 November 2021, page 21
[21] Report by Nathanael du Boulay Canopy Tree Experts dated 21 September 2021 included in applicant’s submissions
[22] Report by Nathanael du Boulay Canopy Tree Experts dated 21 September 2021 included in applicant’s submissions
The applicant was asked whether she agreed with the opinion, and she responded in the affirmative, but with the proviso that she did not believe that we are having normal weather conditions.[23]
[23] Transcript of proceedings 26 November 2021, page 23
The applicant argued that one aspect of the risk was the fly agaric mushrooms that grow underneath the dripline of the tree which she said was a “third of the block”.[24] The applicant was concerned that the mushrooms are poisonous and thereby dangerous and may cause death or serious illness to persons or animals if eaten or touched. She stated that the mushrooms are brightly coloured and attractive and appear in children’s story books and their novelty and attractiveness attracts people and especially children. She also said that each year there might be 30 or so mushrooms and that the season ordinarily was from about April to July each year.[25]
[24] Transcript of proceedings 26 November 2021, page 13
[25] Transcript of proceedings 26 November 2021, pages 27-28
The applicant said that she was concerned for any legal liability should the tree cause damage to people or property.[26]
[26] Transcript of proceedings 26 November 2021, page 14
The applicant called her neighbour, Ms Stuckey to give evidence. Ms Stuckey, her husband and two children moved next door to the applicant’s home about five or six years ago.[27] Ms Stuckey gave evidence that in about 2017 after some stormy weather a branch fell onto their driveway and more recently, another branch had fallen.[28] She also gave evidence about shading and thought the tree cast a significant shade over her house and block especially in winter although she had not had a formal assessment.[29] One of her children is 13 and has a mild intellectual disability and is attracted to things that are red.[30] Ms Stuckey and her husband have warned their children about not eating the mushrooms.[31] Ms Stuckey also gave evidence about the branch in 2017 and described the diameter of the fallen branch to be about 12 to 15 centimetres and a length of about a Toyota Camry.[32]
Criterion (d) the location of the tree is inappropriate given its potential size and
growth habit
[27] Transcript of proceedings 26 November 2021, page 34
[28] Transcript of proceedings 26 November 2021, page 34
[29] Transcript of proceedings 26 November 2021, page 35
[30] Transcript of proceedings 26 November 2021, page 36
[31] Transcript of proceedings 26 November 2021, page 36
[32] Transcript of proceedings 26 November 2021, page 41
The applicant in her submissions described the tree as not having a typical growth pattern for the species and said that this was because the top of the tree had been cut out and this led to adaptation by the tree resulting in the large limbs growing in an upward angle. [33] In the applicant’s oral evidence , the applicant said that the tree was too big for the space that it is in and that it will get bigger.[34] The report of Mr du Boulay from Canopy Tree Experts referred to above did not address the criteria. The other report relied upon by the applicant was a report from Ms Jenny Edwards of Light House Architecture and Science dated 9 March 2021.[35] That report also did not address the criteria, however that is understandable as it was relied upon by the applicant in relation to criteria (e) “substantial effect on solar access…” which is considered below.
Criterion (e) 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
[33] Applicant’s submissions page 8
[34] Transcript of proceedings 16 November 2021, page 16
[35] Report Jenny Edwards Lighthouse Architecture and Science dated 9 March 2021 included in applicant’s submissions
The applicant supported her application with a report from Ms Jenny Edwards of Light House Architecture and Science dated 9 March 2021.[36] The applicant described Ms Edwards as a solar expert.[37] Ms Edwards wrote, “During winter, between the hours of 9am to 11.30am the extremely large pine tree at 43 Henry Street… is substantially affecting solar access to the residence at this address; pruning is not sufficient to remedy this.”[38] In the report, Ms Edwards went on to describe shading effects of the tree and impact upon heating requirements, lighting, and liveability of both the applicant’s home and her neighbour’s home. Ms Edwards did not provide an explanation or basis for the conclusion that the tree was significantly affecting solar access, nor did she explain the basis that if there was a significant effect why pruning would not be sufficient to remedy this.
[36] Report Jenny Edwards Lighthouse Architecture and Science dated 9 March 2021 included in applicant’s submissions
[37] Transcript of proceedings 26 November 2021, page 8-9
[38] Report Jenny Edwards Lighthouse Architecture and Science dated 9 March 2021 included in applicant’s submissions
The applicant questioned the meaning of ‘substantial’ and submitted that “30 percent is definitely substantial” and that the tree met this criterion.[39]
[39] Transcript of proceedings 26 November 2021, page 12
In cross examination, the applicant agreed with the solar estimates in Dr Coyne’s second report dated 4 November 2021 for her home and for her neighbour’s home.[40] For her home, the applicant agreed that the shading values between the times of 9am and 10am on 21 June start at 20 percent of her lease and on 31 August it was 31 percent and that the average was 26 percent and less than 30 percent of the lease and that this represented an average of an hour in winter between the two dates.[41] The applicant was then taken through the estimates for the hours in the table, and agreed that the values would not satisfy her submission that the criterion was 30 percent for 30 percent of the time.[42] For her neighbour’s home, the applicant did not dispute any of the calculations, and agreed that having regard to her interpretation of 30 percent for 30 percent of the time, that the only time at which the shadow from the tree exceeds 30 percent on average is one hour between 9am and 10am on those dates.[43]
The respondent’s evidence and contentions
[40] Transcript of proceedings 26 November 2021, pages 17-18
[41] Transcript of proceedings 26 November 2021, page 18
[42] Transcript of proceedings 26 November 2021, page 19
[43] Transcript of proceedings 26 November 2021, page 19
The respondent relied on the reports and oral evidence of Dr Peter Coyne, to the effect that the tree was structurally sound and in good health. Dr Coyne was chair of the Tree Advisory Panel until about a month before the hearing and since then works as a private consultant. Dr Coyne has professional qualifications in forestry and extensive relevant professional experience. Two of his reports were in evidence, the first was dated 8 April 2021[44] and the second dated 4 November 2021.[45] In his oral evidence and in his reports, he concluded the application did not meet any of the criteria, including 1(1) (b), (d) or (e).
Criterion (b) unacceptable risk to public or private safety
[44] T-documents pages 75-86
[45] Report by Peter Coyne dated 4 November 2021 included in the respondent’s submissions
Dr Coyne said that on the whole the branches were healthy.[46] Dr Coyne also said that there were likely to be more branch failures and that it would be prudent to inspect the tree about every three years for potential branch failure and remove them and that most of the branch failures are likely to be small and it was very unlikely that a branch would reach the house.[47]
[46] Transcript of proceedings 26 November 2021, page 54
[47] Transcript of proceedings 26 November 2021, pages 55-56
Dr Coyne gave evidence about unacceptable risk and mitigation strategies and concluded that the tree was less dangerous than the average garden tree because of its branch structure and the nature of its growth, but if it was 100 times as dangerous as the average garden tree, that would make the risk of one in a million, which was roughly the threshold for whether it is worth doing anything about it at all.[48]
[48] Transcript of proceedings 26 November 2021, pages 58-59
Dr Coyne was also asked about the asbestos sheeting in the eaves and whether it would affect his assessment of the risk to public and private persons based on the prospect of branches failing. Dr Coyne responded that the risk assessment took asbestos sheeting into account and it did not make a lot of difference to the risk assessment.[49]
[49] Transcript of proceedings 26 November 2021, page 63
As to the applicant’s contentions about fly agaric mushrooms, Dr Coyne gave evidence that it would be likely that the mushrooms are at other locations in Cook where there might be a suitable host.[50] Dr Coyne suggested one option was to remove the mushrooms when they are seen and that they take several days to grow to full size.[51]
[50] Transcript of proceedings 26 November 2021, page 60
[51] Transcript of proceedings 26 November 2021, page 63
As to toxicity, after reviewing a study by the North American Mycological Association, Dr Coyne, gave evidence that a lethal dose is 15 fly agaric mushrooms and that in the last 100 years, there had been only one death from eating the mushrooms, and that person died of cold after falling into a coma. Dr Coyne concluded “best records available suggest that is extremely rare.”[52] For children, less mushrooms would be needed, and it would be proportionate to body weight and that no deaths had been reported in Australia.[53]
[52] Transcript of proceedings 26 November 2021, page 61
[53] Transcript of proceedings 26 November 2021, page 61-62
In cross examination, Dr Coyne was asked about risk of poisoning by touching or licking, particularly by children or dogs and Dr Coyne responded that there was almost no risk.[54]
Criterion (d) the location of the tree is inappropriate given its potential size and growth habit
[54] Transcript of proceedings 26 November 2021, page 68
Dr Coyne in his first report of April 2021 described the tree as “part of well-treed streetscape featuring a diversity of tree species, including both native and exotic hardwoods and several confer species.”[55] In his second report in August 2021, he described the tree as “close to the front boundary of the lease and is well clear of the house … It is unlikely to grow much, in height or canopy width, as it is already mature, … I do not believe its location is inappropriate.”[56]
Criterion (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
[55] T-documents page 75-86
[56] T-documents page 75-86
Dr Coyne gave evidence that he used the date of 21 June as it is the winter’s day when the shadows are longest than for any other day of the year and 31 August which for winter is the day with the shortest shadows.[57] He also gave evidence that his August 2021 report took account formally of the amount of sun penetrating under the canopy whereas his April 2021 report did not.[58] Dr Coyne gave evidence that the degree of shading did not justify removal of the tree.[59]
[57] Transcript of proceedings 26 November 2021, page 51
[58] Transcript of proceedings 26 November 2021, page 53
[59] Transcript of proceedings 26 November 2021, page 53
In cross examination, Dr Coyne was asked what he would do if the tree was as close to his house and in his yard. In response, Dr Coyne said that he wouldn’t do anything, and there is no justification to take any action and it would not present him with any concern for safety or any threat and referred to a much larger tree in his own yard overhanging his home and that his home has asbestos eaves.[60]
Consideration of issues and findings
[60] Transcript of proceedings 26 November 2021, page 69
It was not in dispute that the tree was a regulated tree and the Tribunal finds that the tree is a ‘regulated tree’ and therefore a ‘protected tree’ for the purposes of the Tree Protection Act.
Section 19 of the Tree Protection Act establishes a number of exceptions to the offence of damaging a protected tree, and section 21 permits the Minister to determine approval criteria for damaging activities. The approval criteria are contained in Schedule 1 to the Determination, and in this application, the relevant criteria are (b) the tree represents an unacceptable risk to public or private safety; (d) the location of the tree is inappropriate given its potential size and growth habit; and (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.
Criterion (b) the tree represents an unacceptable risk to public or private safety
The Tribunal accepts that the applicant and her children are apprehensive about safety.
The respondent referred to Egan v Conservator of Flora and Fauna[61]. In that case, the tribunal found that Dr Coyne made a persuasive case that criterion (b) refers to ‘unacceptable risk’ as distinct from risk in general and requires consideration of the relative acceptability of the many risks faced in the community, and the relative prevalence of incidents of different types. The tribunal found that criterion (b) requires that the unacceptability of the risk be considered, and that apprehension on its own is not sufficient to satisfy the criterion. This Tribunal follows this approach and also finds that other damage including damage to eaves or in consuming the mushrooms is also low. Indeed, as regards the eaves, it was not established that the branches overhang the house or that the eaves were made of asbestos. The Tribunal is not persuaded by the applicant that ‘unacceptable risk’’ is to be interpreted as a risk requiring acceptance by the leaseholder of land on which a tree is situated. For to do so would mean that in all cases it would effectively place its assessment in the hands of applicants rather than the decision-making power of the Conservator or indeed the Tribunal standing in the Conservator’s shoes for an application under section 25 of the Act. The applicant relied upon Wickerson v Conservator of Flora and Fauna.[62] That case concerned a number of criteria including unacceptable risk to public or private safety and in particular risk to a sheeted asbestos roof by overhanging branches of a tree and the roof had become brittle.[63] The respondent submitted that the case may be distinguished from the present case on the facts and the Tribunal agrees. Here it is not established that there is asbestos in the eaves let alone the roof, there is no branch overhang and the tree and the limbs are healthy. The Tribunal finds that criterion 1(1)(b) has not been met.
Criterion (d) the location of the tree is inappropriate given its potential size and growth habit.
[61] [2016] ACAT 27 at [29]
[62] [2018] ACAT 43
[63] [2018] ACAT 43 at [35]
Although the tree type may not be an ideal tree for the block, that is not sufficient to find that the location of the tree is inappropriate. The Tribunal accepts the unchallenged opinions of Dr Coyne and finds that the location is not inappropriate given it has generally reached maturity and size. The Tribunal finds that criterion 1(1)(d) has not been met.
Criterion (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
The applicant in her evidence and submissions placed emphasis on the meaning of ‘substantial’. Although the applicant submitted that the meaning should be “30% of the lease for 30% of the time”, on the unchallenged evidence of Dr Coyne this threshold was not met. The respondent, by contrast submitted that ‘substantial’ is capable of many different shades of meaning and requires assessment in the individual case, and that it is neither desirable nor helpful for the Tribunal to ascribe an arbitrary numerical value to its meaning with respect to solar access.[64] The applicant relied upon the report of Ms Edwards, Ms Edwards was not called and her qualifications as a solar expert was not able to be explored or tested by the respondent. The respondent submitted that as a consequence, it was a question of the appropriate weight to attribute to the report.
[64] Respondent’s submissions at [60]
Ms Edward’s report does not explain her methodology in coming to her conclusion that the tree was “substantially affecting solar access” nor her conclusion that “pruning is not sufficient to remedy this.” The report therefore is of limited assistance to the Tribunal.
The Tribunal is persuaded by the submissions of the respondent concerning ‘substantial’ and that it requires assessment in the individual case, rather than applying an arbitrary numerical value to its meaning with respect to solar access. The Tribunal prefers the opinion of Dr Coyne and also notes that even on the applicant’s threshold of 30% for 30% of the time, the threshold was not met. The Tribunal finds that criterion 1(1)(e) has not been met.
Further, even if the approval criteria are met, then the second requirement is to consider whether “all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.” The Tribunal notes that the applicant did not engage with the second requirement in her evidence or submissions. The Tribunal notes Wickerson v Conservator of Flora and Fauna,[65]where the tribunal there found that the applicant had not demonstrated that the tree met any of the criteria and as a consequence it was not necessary to consider whether all other reasonable remedial treatments of risk mitigation measures have been determined to be ineffective.[66] The Tribunal agrees with this approach.
Conclusion
[65] [2018] ACAT 43
[66][2018] ACAT 43 [179]
As is required by section 25 of the Act, the Tribunal has considered all of the evidence in relation to the approval criteria, the Tree Advisory Panel advice, and the parties’ contentions. Taking all of these matters into account, the Tribunal finds that it has not been demonstrated that the tree meets any of criteria (b), (d), or (e).
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.
………………………………..
Member W Hawkins
| Date of hearing: | 26 November 2021 |
| Applicant: | In person |
| Solicitor for the Respondent: | Mr D Ager, ACT Government Solicitor |
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