On 18 December 2015, the applicant applied to the respondent to damage three different trees by removing them. Tree assessment reports were prepared on 12 January 2016 and tree 1 (being the subject of this decision) was found to be in good health.
On 22 January 2016, a delegate of the respondent refused the application 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) (ACT) (DI 2006-60) (the Determination) were satisfied.
On 8 February 2016, the applicant submitted an application for reconsideration of the decision in relation to tree 1 on the grounds of unacceptable risk, that the tree had dropped three reasonably large branches, and that the unions of the trees are diseased and will continue to pose a threat.
A report dated 22 February 2016 was prepared for the Tree Advisory Panel (TAP). The report concluded that the tree did not meet any of the criteria for approval to remove it, and recommended that the original decision be confirmed. The TAP agreed with this recommendation and the respondent then made a reconsidered decision, dated 2 March 2016, to uphold the original refusal.
On 4 April 2016, the applicant applied to ACAT under section 107B of the Tree Protection Act for review of the respondent’s reconsidered decision.
Section 21 of the Tree Protection Act provides for the Minister to determine the criteria to be applied when considering an application for approval of a tree-damaging activity. On 4 April 2006, the Minister for the Environment made a 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.
The issues for determination were:
(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 measure have been determined to be ineffective) has also been satisfied.
It was agreed that the tree was a regulated tree under the Tree Protection Act and it was not disputed that its removal required approval. The tree was identified as a Eucalyptus Meliodora, (a Yellow Box), which was listed as a local ecologically beneficial species in schedule 3 of the Determination for the purposes of paragraph 1 criterion 3(c).
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.
The Tribunal listened to evidence from three different experts during the hearing (two of whom were engaged by the applicant). A fourth expert, who had submitted the original application on behalf of the applicant, was not available for questioning.
The Tribunal held as follows in relation to each criterion:
Criterion (a) – Tree Decline
The applicant failed to address this criterion in any detail but in any event all three tree experts who attended were all clearly of the view that the tree was healthy and so eligibility under this criterion was not substantiated.
Criterion (b) – Public and Private Safety Issues
All three experts provided detailed and completely consistent analysis that supported a conclusion under criterion (b) that the tree does not present an unacceptable risk.
Criterion (c) – Damage to Structures
ACAT concluded that while it was clear that branches had fallen in the past, it was not evident that significant damage had resulted. The tree did not overhand or appear to threaten any substantial building, structure or service and therefore eligibility under this criterion was not substantiated.
ACAT concluded that none of the conditions for removal have been satisfied and the Conservator’s decision should be confirmed.