//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2010] ACAT 91
ACT Civil and Administrative Tribunal
2010-12-23
Original judgment source is linked above.
The applicant first applied to remove the subject tree and one other regulated tree ('Tree No 7') on 4 June 2010, in connection with the proposed redevelopment of the property. This would involve removal of the existing house and its replacement with a new one. The application sought removal of the two trees because, it said, they: 1. Occupy the rear building zone which is required for use because of the increased setback; 2. Impinge on the most advantageous footprint that needs to run diagonally across the block; 3. Pose the interminable risk of dangerous limb drop; 4. Have the greatest potential for disease with dubious longevity; and 5. Their removal will have the least negative impact on the streetscape.
A Tree Inspection Officer inspected the trees on 7 June 2010. He recommended that the removal of Tree No 7 be approved but that removal of the subject tree be refused. On 6 July 2010, a delegate of the Conservator approved removal of Tree No 7 and refused the application to remove the subject tree. The decision not to approve removal of the subject tree, made under section 25 of the , was on the grounds that it had not been established that any of the criteria for removal set out in Clauses 1(1) and (2) of Schedule 1 of the (Disallowable Instrument DI 2006-60), made under of the Act, had been satisfied.
Section 106 of the Act provides that a person may seek reconsideration of a decision by the Conservator to refuse to approve an activity under section 25 of the Act. Mr Enrico Taglietti, on behalf of the applicant, sought such reconsideration on 22 July 2010. The application included an attached tree report, dated 22 July 2010, prepared by Mr Colin Schaefer of Sapphire Coast Tree Service & Tower Hire ('Sapphire Coast report'), which identified various alleged weaknesses in the tree and sources of potential failure.
In accordance with section 107(1) of the Act, the reconsideration application was referred to the Tree Advisory Panel. A member of the Panel, Mr Philip Unger, inspected the tree on 23 August 2010 and recommended that removal of the tree be approved. This was on the basis that the tree had defects, and although the risk to public and private safety appeared low at present, this could change if the proposed development were to proceed.
At its meeting on 26 August 2010 the Tree Advisory Panel decided not to endorse Mr Unger's recommendation. The chair of the Panel, Dr Peter Coyne, informed the Tribunal that, in reaching this conclusion, the Panel had regard to the risk assessment prepared by Mr Unger, in accordance with the relevant Australian standard, indicating that the risk to personal safety was low. The Panel also considered that under the Act the assessment of risk must be in the present context not at some later time on the assumption that the proposed development would proceed. The Panel therefore advised the Conservator: 'Panel felt that no criterion met at present under the Act. Therefore grounds for removal not met'. On 3 September 2010 the Conservator reaffirmed the original decision not to approve removal of the tree.
The applicant applied to this Tribunal for review of the Conservator's reconsidered decision by application dated 11 October 2010. The application contends that (a) the tree is in decline and its life expectancy is short; (b) the tree represents an unacceptable risk to public safety; (c) the tree is threatening to cause damage to a service; and the only reasonable risk mitigation measure is to remove the tree.
(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.
_... a living tree (other than a registered tree or a palm tree) that is on leased land within a tree management precinct and - _
(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
(b) the advice (if any) of the advisory panel; and
(c) anything else the conservator considers relevant.
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;
all other reasonable remedial treatments and risk mitigation measures have been determined to be ineffective.
when a large limb snapped off at the point of swelling.
Mr Taglietti contended that Trees Nos 6 and 7 are poor specimens of remnant trees and that the species is abundant in the ACT. He noted that that the initial tree assessment report prepared by the tree inspector assessed the tree as being in only 'fair' health, identified damage to the trunk and rated the landscape value of the tree as 5 out of 10. The report also commented that the 'tree is not ideally shaped being part of two trees grown close together'. Mr Taglietti contended that this statement deliberately avoids the reality that the tree is deformed. In his view, a deformed tree will usually show a poor condition of health due to environmental stress. He thought that the shape of the tree is evidence that the tree is in decline.
Mr Taglietti also noted that Mr Unger's report identified 'two defects of unknown significance' in the trunk of the tree and assessed the canopy of Tree No 7 as better than that of Tree No 6. He also observed that the risk matrix for environmental damage attached to Mr Unger's report assessed that the environmental impact if the application were approved would be at the lowest level.
Mr Taglietti contended that Tree No 6 has grown balanced with Tree No 7 and the removal of Tree No 7 will amplify the problems of Tree No 6. In his view, the root zone of Tree no 6 is enmeshed with that of Tree No 7 and will be disrupted and wind stress inflicted on the canopy of Tree No 6 will increase. He noted that the canopy is 3.5 metres away from and overhangs the power line. In considering the risk to public and private safety, he said, the fear of failure of the tree or one of its branches is a relevant consideration.
Mr Taglietti stated that the design of the proposed development is intended to achieve a passive solar orientation and an energy rating of 6. He contended that retention of the subject tree would be an impediment to achieving the desired energy savings. He was also of the view that maintaining the tree will reduce the value of the land and will incur maintenance costs.
Mr Taglietti contended that the proposed redevelopment of the property will be impossible without the removal of both Trees Nos 6 and 7. He rejected the suggestion from counsel for the respondent, Dr Jarvis, that it might be possible to redesign the development or move it towards the front to the house. He said that his professional ethic would not allow him to design a different house just to protect the two trees. Mr Lowe argued that moving the house to the front of the block was not a practical option as this would involve interference with the regulated trees at the front of the block, in particular Tree No 2, a high quality Grevillea robusta.
Mr Taglietti has made several accusations to the effect that the Conservator and the Tree Advisory Panel have ignored the objects of the Act, have failed to meet the requirements of the Act or have failed to take relevant considerations into account. The respondent has denied these accusations. However, it is not necessary for the Tribunal to canvass these matters in this statement of reasons, as they are not relevant to the task facing the Tribunal in these proceedings. The Tribunal's task, standing in the shoes of the Conservator, is to undertake a fresh consideration of the application to remove the subject tree, having regard to the evidence currently available and to the criteria for removal in the Criteria Determination.
The respondent contends that, in respect of the tree in question, none of the criteria for removal in the Criteria Determination have been met, and that the decision under review should be confirmed.
Dr Doug Jarvis appeared before the Tribunal for the respondent. Dr Peter Coyne provided evidence for the respondent, including a witness statement. Dr Coyne has a BSc (Forestry) (Hons) and a PhD in plant ecology, and has extensive professional experience relevant to the matter before the Tribunal. He was appointed a member of the Tree Advisory Panel in March 2006 and has been the chair of the Panel since August 2007.
Dr Coyne was not present at the meeting of the Panel on 26 August 2010 which advised the Conservator that the grounds for removal of the tree had not been met. However, Dr Coyne inspected the tree on 17 November 2010 following the request for review of the Conservator's decision. Dr Coyne's witness statement says that before he inspected the tree he read the initial application, the tree inspector's report, reports by Sapphire Coast Tree Service and Enrico Taglietti, and the application for review. He also took part in a lengthy discussion concerning the tree at a meeting of the Tree Advisory Panel on
During Dr Coyne's inspection he noted that the tree was 'reasonably healthy'. He also noted the defects in the tree identified in the Sapphire Coast and other reports. However, in his view, this does not mean that the tree has a short life expectancy. In his experience, eucalypts normally live long lives, sometimes hundreds of years, with a variety of defects. His assessment is that there is no evidence to suggest that either of the defects in the tree is likely to cause imminent failure. Dr Coyne clarified that by 'imminent failure' he meant failure in under 10 years. His opinion is that on the basis of broader experience the tree could be expected to remain structurally sound for many years.
Dr Coyne acknowledged that the tree has a substantial lean, of about 30o, caused by its growth away from Tree No 7. But, in his view, as the tree has grown it has developed the root structure to support it and appears stable. Such leans are normal in nature and do not indicate any likelihood that a tree will fall over.
Dr Coyne's did not see evidence of movement at the base of the tree as mentioned in the Sapphire Coast report. He thought that the recent heavy rains would have caused the tree to fall if there was lifting of the roots.
Dr Coyne did not agree that there is a swelling on the trunk of the tree as identified in the Sapphire Coast report. He was not able to say whether there is a weakness or not as he did not know what was the internal structure of the wood at that point. Dr Coyne provided a brief document presenting the results of studies, including his own, which appear to indicate that eucalypts can cope with considerable loss of strength from hollowing out before they collapse. The document acknowledges, however, that these studies refer to vertical tree trunks and would not apply precisely to leaning branches. Also, the extent of variation of circumstances means that qualifying the likelihood of failure is extremely difficult and unlikely to be precise. Despite these caveats, the document concludes that what is clear is that a tree can remain structurally sound despite a remarkable degree of defect.
It is Dr Coyne's view that the tree is unlikely to fall in the foreseeable future, but if it did it would still not present an unacceptable safety risk. For injury to occur from failure of the tree or from a falling branch, it would be necessary for someone to be standing under the tree at the right spot and at the exact time of failure. In his opinion the probability of this is low. Dr Coyne's assessment was borne out, he said, by the rarity of actual safety incidents in Canberra despite the abundance of trees in suburban gardens. In most cases, Dr Coyne said, the effect of a falling branch is to cause fright rather than injury or death. The fatality rate in Australia from falling branches appears to be about 1 person per year, he said, which is 30 time less than the risk of being murdered and considerably less than being killed by lightning.
Dr Coyne stated that the risk of injury was low because the area where the tree would fall if failure occurred at either of the defect points is the unused back corner of the property. It was his view, based on the condition of the yard at the rear of the block at the time of his inspection, that people are present in that area extremely rarely and the risk that the tree would fall when people were present is miniscule. In this connection, Dr Jarvis tabled photos purporting to show long grass under the subject tree and the presence of logs and other items that would discourage or restrict access to the area. Mr Taglietti and Mr Lowe challenged this view and referred to photos, including one showing a table under the tree, which in their view showed that the area under the tree is maintained and is used for recreational purposes. Dr Coyne maintained that, even if the grass under and around the tree was kept short, the risk from a falling branch or failure of the tree is low.
Dr Coyne said that the tree is well away from the house on the subject property and could not cause substantial damage to the house. Other substantial structures are even further away, he said. He noted that the tree is close to the low-voltage power line along the rear fence, but no part of the tree is within the 1.5 metre clearance required by ACTEW-AGL. He observed that many suburban trees are in similar or closer proximity to power lines. His assessment was that the tree is not causing or threatening to cause substantial damage to a substantial building, structure or service.
Dr Coyne thought that the weight of the crown of the tree is to the left of the trunk, but conceded that some branches could hit the power line if the tree failed, although this might depend on the direction of any wind. However, he also thought that it would be possible and reasonable to trim the branches in the vicinity of the power line to reduce the risk of damage. It would also be possible to prune the crown to reduce its weight and any stress on the tree.
Dr Coyne did not agree that removal of Tree No 7 would weaken the root structure of Tree No 6 provided the stump of tree No7 was not ground below ground level. He said that the approval to remove Tree No 7 did not include approval for any such grinding.
Criterion 1(a): the tree is in decline and its life expectancy is short
Criterion 1(b): the tree represents an unacceptable risk to public or private safety
Dr Coyne's evidence that people would be present in that part of the backyard only rarely. The Tribunal notes, however, Dr Coyne's evidence that, even if people are not restricted or discouraged from making use of that part of the backyard, the risk of injury remains low.
Criterion (c): the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service
Dr Coyne conceded that some branches could hit the power line if the tree were to fail, but is of the view that this would not cause substantial damage. He also argued that it would be possible and reasonable to trim the branches in the vicinity of the power line to reduce the risk of damage. The crown of the tree could also be pruned to reduce its weight and to reduce the risk of failure of the tree.