Classic Constructions (Aust) Pty Ltd v Conservator of Flora and Fauna [2005] ACTSC 103

2. Relevantly for present purposes, the determination provided as follows:

(1) The Conservator... may give an approval... to remove a tree 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;

...and all other reasonable remedial treatments and measures have been determined to be ineffective.

(7) Examples of the kinds of activities for which an approval to undertake a tree damaging activity may be given are:

(a) Removal of unsuitable or hazardous trees subject to replacement plantings being undertaken where necessary. ...

(8) Examples of reasonable remedial treatments or measures are:

(a) Thinning, selective pruning or reduction pruning of trees to lessen wind resistance, to reduce weight of limbs, to reduce competition, to increase light penetration and air circulation through the crown every three years.

(b) General pruning to remove dead, diseased, dying, defective and conflicting branches or foreign matter deemed to be dangerous or detrimental to the tree every two years.

(c) Selective or formative pruning to remove identified branches that are causing a problem or to reduce encroachment on utilities or buildings every two years.

(d) Crown lifting for pedestrian or vehicular access every two years.

(e) Thinning, selective pruning or reduction pruning on trees to provide solar access and property alignment to private dwellings every two years.

(f) Annual inspection by a qualified arboriculturist to undertake risk and hazard assessment.

The list of examples set out in paragraph (6) [semble 7] and (8) do not limit the circumstances in which an approval may be given.

3. Section 15 of the Act permits the Conservator to approve the removal of a tree only if satisfied on reasonable grounds that the removal is within the criteria. The Conservator is required first to seek a report from the adviser, a person with extensive relevant technical experience appointed by the Minister under section 21.

4. Section 47 provides for application to the Tribunal for review of a decision of the Conservator refusing an application for approval. Since the establishment of the Tribunal in 1989, there has been provision for an appeal from a decision of the Tribunal to this Court on a question of law: section 46, Administrative Appeals Tribunal Act 1989. The AAT Act was amended last year as one of a large number of Acts amended by the Court Procedures (Consequential Amendments) Act 2004. This was a cognate Act with the Court Procedures Act 2004, an Act aimed at improving court procedures as a precursor to the harmonisation of the rules of this court and the Magistrates Court. The Attorney-General's explanatory statement to the Legislative Assembly stated that the purpose of the amendments to the AAT Act was "to streamline and standardise the appeal process to the Supreme Court".

5. The second reading speech of the Attorney when introducing the bills refers to the aim of harmonisation of practices and procedures between the two courts, but makes no mention of the introduction of the requirement for leave to appeal to this court from the Tribunal. I am informed by counsel that this is the first occasion when this court has been asked to grant leave to appeal from the Tribunal since the requirement for leave was introduced.

6. The adviser, Mr Carmody, recommended that the application to remove the tree be rejected, and reported as follows:

This is a very old tree. It has significant cultural value and it is believed to be one of the last remaining examples of the species in the area. It is small and it does not pose a risk. The termites, if there now, pose no risk at all. The tree is growing in a designated no build zone. In the past the tree has been managed by a tree maintenance company.

7. The conservator accepted the recommendation. In his statement of reasons, the conservator wrote, in respect of the criterion that the tree represented an unacceptable risk to public or private safety:

Evidence of weak branch unions was recorded, which is due to the presence of an amount of epicormic growth. The epicormic growth appeared stable at the time of inspection. No evidence to support this criterion.

8. The Conservator in his reasons went through each of the criteria for removal set out above and found no evidence to support any of them. The request for approval to remove the tree was refused.

9. Before the Tribunal, the appellant argued that a number of the criteria were applicable. Having regard to the factual findings made by the Tribunal, for the purpose of the present appeal the appellant relies only on the risk to safety criterion.

10. The Tribunal noted that the tree in question was estimated to be some two hundred years old and had been described as an important edge-of-frost-hollow remnant, such trees not being common in Canberra. It noted that the tree had been identified in 2001 when Harcourt Hill Estate Stage 10E, of which the block forms part, was being planned. Pruning had been undertaken during 2001 with the intention of preserving the tree and promoting further growth.

11. The Tribunal further noted that Stage 10E had been developed by Harcourt Hill Pty Ltd, from whom the appellant had purchased the vacant block with a view to building a house for sale. There was in evidence before the Tribunal a set of lease conditions and development requirements, and it was accepted that these formed part of a contract between the developer and the appellant. They were said to set out lease conditions and development requirements affecting the blocks in the Stage which were capable of enforcement by the Territory. These were stated to be set out for the information of prospective purchasers and lessees of the blocks. The conditions included a clause about existing trees in the following terms:

Existing trees being retained shall be preserved in accordance with the Canberra landscape guidelines as amended, in particular category A - landscape works within private leases, prepared by ACT Landscape. Trees classified as "high plus" or "high" quality have been identified on the integrated development plans to assist lessees in their preservation.

12. Stage 10E consists of three sections comprising 32 blocks. The appellant's block, Block 2 Section 154 Nicholls, is a battleaxe block with access from Hendry Close. It has an area of 1290m² and its zoning requires the erection of a single residence.

13. A plan of Stage 10E was attached to the conditions, delineating the blocks, and showing what were described as "trees to be retained - refer sheets 9, 10 and 11". A number of trees were shown on the Stage plan, including the tree in question.

14. The lease conditions and development requirements included a sheet, sheet 11 of 17, which showed the block in question, and, from above, the trunk and canopy of the tree, with two generally rectangular figures around it: one described as a "no build" zone, and the other representing a protective fence. The "no build" zone shown on the plan is a little larger than the notionally fenced area: whilst the trunk of the tree is shown to be wholly on block 3, the canopy extends on to block 5 as do both the "no build" zone and the fenced area. The sheet is endorsed with the following:

1) The protective fencing around the trees will be installed by Harcourt Hill Pty Ltd and is to be maintained by the lessee during construction of the dwelling.

2)"Tree damaging activity" is defined as felling, removing, ringbarking, lopping and topping, poisoning or any ground work under the canopy of a "significant tree" or within a 2 metre wide area out from the canopy, that is likely to harm the health of the tree. "Groundwork" includes trenching, changing the soil levels (cut or fill), compacting or contaminating the soil under the Tree Protection (Interim Scheme) Act 2001_. Tree damaging activities will require approval from Environment ACT, prior to any commencement of any work on the site._

15. As the Tribunal noted, a house has been constructed on the neighbouring block, Block 5.

16. In relation to the risk to safety criterion, the Tribunal noted that the appellant's case relied substantially on the evidence of Mr Alan Mann, an arborist. The Tribunal found his evidence particularly helpful as he had been involved in examining and treating the tree in 2001. Mr Mann had prepared a written witness statement in which he said that there would be a time when the tree would become an unacceptable risk. In his oral evidence, he brought that risk forward to a present risk, particularly to children. He identified possible remedial measures, including light pruning of the canopy to reduce weight and remove dead branchlets; major pruning to remove some branches to reduce the effect of wind forces and the possibility that a branch might fall; and the use of landscaping solutions and/or fencing to discourage access to the area of possible risk under the tree. He did not support the major pruning option because he thought that it was likely to contribute to the decline of the tree by reducing its capacity to regenerate, through photosynthesis, the energy needed for repair and growth.

17. The Tribunal also referred to the evidence of Dr Robert Boden, a former adviser to the Conservator who had also been involved in examination and treatment of the tree in 2001; and to academic publications by Professor Claus Mattheck as to the likelihood of breakage of the stem of a hollow tree. The Tribunal found itself unable to rely on Professor Mattheck's work in coming to a conclusion about the likelihood of the failure of the tree.

14. At present the subject block is vacant and we have no evidence of current activity by any persons on the block for whom the tree could represent an unacceptable risk. Although it is currently vacant we infer that the applicant proposes to commence construction on it in the near future, possibly including a boundary fence between it and the block to the north. The lease conditions require the applicant to maintain a fence around the tree during construction of the dwelling. The remains of a wire fence were evident during the site inspection. It is not currently standing and would need to be replaced. While the purpose of the fence is to protect the tree during construction, it will serve equally to protect people from the possible risk of failure of a branch of the snow gum. The evidence suggests that any failure is more likely to occur slowly than suddenly. Given the size of the "no build" zone within the fence, if a branch fell it would do so substantially, if not wholly, within the fenced "no build" zone. We find that the tree does not represent an unacceptable threat to public or private safety in these circumstances.

15. The applicant argued that the landscaping treatment advocated by Dr Boden would be inadequate to ensure the protection of those people, possibly including children, living or visiting (sic) the subject block in the future. At that time the requirement for a protective fence as set out in the lease development conditions will no longer apply. We are persuaded by the submission of Dr Jarvis, for the respondent, that since this criterion is expressed in the present tense it is not appropriate to speculate as to who might reside on the block in the future. We cannot know whether the landscape treatment outlined by Dr Boden or some other solution will be appropriate or otherwise. If it appears necessary to do so once construction is complete, major pruning as outlined by Mr Mann might be considered preferable to removing the tree entirely. But we make no judgment as to whether tree-damaging activity, other than removal, or reasonable remedial treatments or measures, will be necessary in the future. That would be a matter for a decision-maker at that time.

16. We find that the tree does not represent an unacceptable risk to public or private safety.

24. The requirements of the Act are rigorous and are aimed to protect significant trees. This snow gum has been recognised as a significant tree since the subdivision was first planned several years ago. Lease conditions were inserted to reinforce the tree's status and to help protect it during construction. This was known to the lessee. While it is unfortunate that the fence has been allowed to fall and that the tree has not been protected by it in recent times, we must anticipate that those lease conditions will be observed. We find the criteria that would allow the tree to be removed have not been satisfied.

(a) That the Tribunal failed to determine whether the tree itself constituted an unacceptable risk to public or private safety.

(b) The Tribunal erroneously relied upon a contractual condition, in lease and development conditions, which required a fence to be maintained around a tree as grounds to conclude that the tree did not represent an unacceptable risk to public or private safety.

(c) If the Tribunal implicitly held that the erection of a fence was a "reasonable remedial measure" under clause 1 of the Tree Protection (Interim Scheme) Determination of Criteria 2002 it erred in that the erection of a fence is not contemplated as a "reasonable remedial measure" under the Determination.

(d) If, contrary to ground (c) above, the erection of a fence can constitute a "reasonable remedial measure", the Tribunal erred in reaching any such conclusion by failing to make findings as to the dimensions and location of the fence required to afford protection from the tree.

(e) The Tribunal erred in failing to take into account the effect of the tree on the neighbouring Crown lease and the inability of the appellant to place a fence on the neighbouring Crown lease.

(f) The Tribunal erred in interpreting section 15(1)(b) of the Tree Protection (Interim Scheme) Act 2001 and clause 1 of the Tree Protection (Interim Scheme) Determination of Criteria 2002 as only relating to present circumstances.

21. This application for leave to appeal from the Tribunal is an interlocutory application and is within my jurisdiction as Master: Order 61A, Rule 1(u). The appeal itself is not within the Master's jurisdiction and, if it is to proceed, will be heard by a judge. There is no authority directly on point as to the considerations which ought to be taken into account when considering an application for leave to appeal from the Tribunal. The AAT Act was modelled on the Commonwealth Administrative Appeals Tribunal Act 1975 and when originally introduced was in almost identical terms. The Commonwealth Act provides for an appeal to the Federal Court of Australia: although limited to the correction of errors of law, such an appeal lies as of right, so that it has not been necessary for the Federal Court to consider the issue which comes before me on this application.

22. A parallel may be found in appeals from an interlocutory order made by a single judge. In most jurisdictions, such an appeal lies only by leave. The Full Court of the Supreme Court of Victoria formulated guidelines for such leave in Niemann v Electronic Industries Limited [1978] VicRp 44; [1978] VR 431. To obtain leave to appeal from an interlocutory order, the appellant must show a doubt about the correctness of the primary judge's decision and that an injustice would be done by allowing the decision to stand. A court will more readily give leave to appeal against an interlocutory decision which has effectively terminated the rights of the applicant for leave. Stricter control is exercised where the decision, like most interlocutory orders, concerns practice and procedure and is not determinative of the parties' rights. It has been said that where an interlocutory order relates to a question of practice or procedure, the availability of an appeal as of right would have a tendency to increase delay and costs by transferring to an appellate court discretions that should be exercised by a chamber judge or master: leave should therefore be reserved for cases with special features warranting appellate review. The requirement for leave is recognised as a warning that interlocutory appeals are not to be brought as a matter of routine.

23. Another example of a requirement for leave to appeal arises under the Small Claims jurisdiction of the Magistrates Court. An appeal from a final judgment of the Small Claims Court lies only by leave, and the grounds of appeal are limited to errors of law and unfairness in the conduct of the proceedings. An example of an application for leave to appeal from the Small Claims Court which was granted is Ferguson v ACT Electricity and Water [1995] ACTSC 5, in which Higgins J, as His Honour then was, regarded the guidelines sets out in Niemann as relevant.

24. The granting of leave to appeal involves the exercise of a discretion, and whilst the discretion must be exercised judicially and in accordance with the statute (here the AAT Act) the Court should be careful not to create additional restraints. As McGarvie J said in McKenna v McKenna [1984] VicRp 58; [1984] VR 665:

Decisions of judges in the exercise of a discretion are often useful to a judge later exercising the discretion. Earlier decisions may show what considerations are, and what are not, relevant to the exercise of a discretion. They may indicate what considerations are usually considered and what weights are usually accorded to particular considerations. They may indicate the approach which is appropriate in the usual case. However, they cannot create either a formula to be followed or conditions precedent to be satisfied before the discretion can be exercised in a particular way. That would involve an impermissible fettering of the discretion. In that way, judicial decision would destroy the flexible discretion which the law had conferred on the judge.

25. I remind myself that it is not my function to predict the likely outcome of the appeal: except to the extent that, if I were satisfied that the appeal would have no prospects of success, I should refuse leave.

26. Something the AAT has in common with the Small Claims Court is that many matters which come before it involve self-represented parties. It can be assumed that often the losing party will have an understandable sense of grievance and may be less than entirely objective about the prospects of an appeal succeeding. I hasten to add that the present applicant is not in that category, having been represented by counsel before the Tribunal and before me. Nevertheless this suggests that perhaps the legislature sees the requirement for leave as a useful filter to relieve the Court and the parties of the time and expense which might be lost if an appeal with minimal prospects were able to be brought without leave.

27. Rather than seek to express some statement of principle which should be applied generally to applications for leave to appeal from the Tribunal, it seems to me preferable to deal with this application on its own facts, and to allow the development of any applicable general principles on a case-by-case basis.

28. Notwithstanding paragraph 16 of the decision of the Tribunal, quoted above, it does not seem to me that the Tribunal has arrived at a finding whether or not the tree in its present condition represents an unacceptable risk to public or private safety. The Tribunal has, it seems to me, considered the question of the safety of the tree as it would be if there were a fence around it as contemplated by the lease conditions and development requirements. It is not entirely clear to me whether the contents of the document form part of a contract between the developer and the lessee. It may be that there is a contract between the Australian Capital Territory and the developer which includes those provisions. It is also possible that the document sets out obligations imposed on the developer, and perhaps even on the lessee, by statute or delegated legislation. The Tribunal made no finding about this, and I am unable to do so on the material before the Court.

29. Whatever the status of the note on the plan to the effect that "the protective fencing around the trees will be installed by Harcourt Hill Pty Ltd and is to be maintained by the lessee during construction of the dwelling", it is plain that the tree was unfenced at the time of the hearing before the Tribunal, and remains so. Photographs in evidence show the remains of what may well once have been a fence around the tree, consisting of star pickets and chicken wire. It is impossible to tell whether this fence ever equated to the protective fence shown on the plan. As I have said, a good portion of the fence shown on the plan is on the adjoining block 5. Construction of the dwelling on that block is complete, and assuming that the lessee of block 5 was under an obligation to maintain fencing during construction, that obligation would appear to have come to an end.

30. It is unclear whether any entity might have a right to take any action against the present applicant if it were to proceed with the construction of a dwelling on block 3 without fencing the tree. It is enough for present purposes to repeat that when the matter was before the Tribunal, and today, the tree was and is unfenced.

31. It is apparent that the purpose of the requirement for protective fencing around identified trees on the plan of Stage E of the development was to protect the trees from damage during the construction process, for example by plant and machinery; rather than to protect members of the public from injury.

32. Clause 1 of the criteria provides that the Conservator may give an approval to remove a tree where the tree represents an unacceptable risk to public or private safety. The Conservator decided, among other things, that the tree in question did not. The Tribunal, in reviewing this decision, did not make a finding as to whether or not the tree in its present condition represents an unacceptable risk to public or private safety. The finding of the Tribunal, although expressed in unqualified terms, can only be interpreted as a finding that the tree would not be an unacceptable risk to safety if it were adequately fenced consistently with the plan which formed part of the lease conditions and development requirements. The Tribunal simply did not address the issue of whether, at the time it made its decision, the tree represented a risk to public safety, or to private safety, or to both, and if so, whether or not that risk was acceptable. They also failed to address the issue of whether, assuming that the tree did represent an unacceptable risk, all other remedial treatments and measures had been determined to be ineffective.

33. If my provisional view in this regard is correct, it would follow that the decision of the Tribunal is wrong.

34. I accept that this will not always be enough to warrant a grant of leave. It may be appropriate to refuse a grant of leave even in respect of a wrong decision, where no substantial injustice would flow if leave were refused. This state of affairs might obtain where the factual substratum of the decision had been altered by subsequent events - for example, if there were evidence that the tree had been significantly changed by damage caused by storm, lightning or fire. In the present case, I am satisfied that a refusal to grant leave would be likely to work substantial injustice to the appellant. I take notice of the fact that the options open to the appellant for residential development of the Block are restricted by the presence of the tree and would be widened in the event of its removal. It does not seem to me that there are any discretionary factors militating against the grant of leave.

35. I am reminded that an appeal lies from the Tribunal only in respect of an error of law. A failure to make a factual finding on an issue necessary to the decision under review is in my view an error of law rather than of fact. Hence, if my provisional opinion is correct, it would be open to a judge hearing the appeal to allow it and remit the matter to the Tribunal to determine the outstanding issue.

36. For these reasons I grant leave to appeal from the decision of the Tribunal made on 9 August 2005. I take the opportunity to thank counsel for their assistance in determining this, the first application for leave since the AAT legislation was amended to require it. The costs of the application will be costs in the appeal.

I certify that the preceding thirty-six (36) numbered paragraphs are

a true copy of the Reasons for Judgment herein of the Master.

Solicitor for the Respondent: ACT Government Solicitor