Trotter v Conservator of Flora & Fauna (Administrative Review)

This matter involved a review of a decision by the Conservator of Flora and Fauna under the Tree Protection Act 2005 to refuse permission for the removal of a Cedrus deodara (Himalayan cedar) tree located on a residential block. The applicant, Ms Sally Trotter, sought to have the tree removed on the basis that it represented an unacceptable risk to safety, was located in an inappropriate position given its size and growth habit, and substantially affected solar access to her lease and that of her neighbour. The hearing included a site inspection and evidence from Ms Trotter, her neighbour, and experts for both parties. The primary issue for determination was whether the tree met any of the criteria for removal under the Act. The relevant criteria are set out in paragraphs (1)-(3) of criterion 1 of schedule 1 of the Tree Protection (Approval Criteria) Determination (No.2). The Tribunal found that the tree did not meet the criteria for removal. Regarding criterion (b), the Tribunal found that the risk of the tree falling on the house was low and the risk of poisoning from the fly agaric mushrooms was extremely rare. As to criterion (d), the Tribunal accepted the evidence of the expert that the tree had generally reached maturity and size and was not likely to grow much. Finally, as to criterion (e), the Tribunal found that the tree did not substantially affect solar access to the lease and that pruning was sufficient to remedy any shading. The Tribunal confirmed the Conservator’s decision to refuse permission for the removal of the tree.