Tree Protection in the A.C.T
Fact Sheet
8
This fact
sheet provides a brief overview of Tree Protection laws in the ACT.
Note
that this Fact Sheet is to be updated following the passage of the
Tree Protection Act 2005 in September 2005. The bulk of that
Act has now commenced, since 29 March 2006. To view a
fact sheet on the new legislation click
here.
Due
to EDO funding restrictions we have been unable at this point to
write a replacement fact sheet. That work is under way at present.
For further
information visit the legislation
register website.
INDEX
Why bother about Tree Protection?
What was the Previous Legislative Framework
for Tree Protection?
Prohibition against damaging significant trees
Gaining Approval
Damaging Trees in Urgent Circumstances
Tree Protection Under Planning Law
How are Native Trees Protected elsewhere in
the Territory?
What if a Neighbour’s Tree is Causing
Problems?
What
if the neigbour's tree is causing damage and might be a significant
tree and they won't do anything about it ?
How can I Appeal a Decision to Allow Destruction
of Trees ?
How are Trees on Nature Strips Protected?
How are Trees on Public Land Protected?
How are Trees on National Land Protected?
What about Tree Protection under NSW Law?
Further Information and Contacts
Why bother
about Tree Protection?
Trees are important in both the urban and natural environment.
They prevent soil erosion, provide habitats for wildlife, improve
the atmosphere, protect water catchments and add to the landscape
setting. There is a history of substantial tree planting and maintenance
since the establishment of the ACT.
Many people perceive that the culture of respect for trees established
over the years has declined since self-government and is continuing
to decline. On an individual level, many neighbourhood disputes
involve problems caused by the effect on existing trees of development
proposals or problems caused by inappropriate tree planting or maintenance.
What was the
Previous Legal Framework for Tree Protection?
The
Tree Protection (Interim Scheme) Act 2001 (Tree Protection
Act) came into force in March 2001. The Act was aimed at preventing
the felling of, or damage to, significant trees on certain territory
land until permanent tree protection legislation was introduced.
The Bill for
the replacement Tree
Protection Act 2005 was introduced to the Legislative Assembly
on 17 March 2005 and was passed by it on 22 September 2005. The
bulk of the new Act commenced on 29 March 2006. It is important
also to review the Regulations and related statutory instruments
such as notifiable instruments which can all be viewed on the ACT
Legislation Register website.
The new legislation sets out provisions for the protection of trees
in the urban area. The Act contains provisions for:
• establishment of a register of trees of high importance
with appropriate levels of protection;
• establishment of comprehensive tree protection measures
to be applied in areas where urban forest values are at risk of
degradation;
• approval of tree damaging activities;
• approval of groundwork activities within the tree protection
zone of a protected tree;
• approval of tree management plans;
• offence and enforcement provisions;
• ability for the Conservator of Flora and Fauna (the Conservator)
to make directions with regard to tree protection matters; and
• establishment of a Tree Advisory Panel. (The Conservator
is established under the Nature Conservation Act 1980).
The existing Act is only applicable to leased territory land that
is not used for rural purposes. It does not cover unleased land,
leased rural land or apply to the removal of a tree in accordance
with:
• a development approval under the Land (Planning and
Environment) Act 1991 (the 'Land Act'), if the application
for the development approval was made before the commencement of
the Interim Tree Protection Act (29 March 2001); or
• a condition
of the lease where the tree is located, if the condition was in
force immediately before the commencement of the Interim Tree
Protection Act.
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Prohibition against damaging significant trees
The Interim Tree Protection Act prohibits the damaging
of a significant tree. Damage means felling, removing, ringbarking,
loping, poisoning, or doing any ground work under the canopy of
the tree, or within a 2 meter radius out from the canopy, that is
likely to harm the health of the tree. Ground work includes building,
trenching, changing the soil level and compacting or contaminating
the soil. Clearance for powerlines and normal maintenance for pruning
is not classified as damage.
A tree is significant if it is on leased land and:
• is 12 meters or more high
• has a trunk with a circumference of 1.5 meters or more,
1 meter from the ground
• has two or more trunks and the total circumference of all
the trunks, 1 meter above the ground, is 1.5 meters or more
• or has a canopy 12 meters or more wide.
A significant tree must not be damaged without the approval of
the Conservator of Flora and Fauna. The criteria under which the
Conservator can grant approval is set out in the Tree Protection
(interim scheme) determination of criteria (a disallowable
instrument DI2003-5) which can be located on the Legislation
Register website.
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Native Trees and Weeds
The Interim Tree Protection Act does not distinguish between
native trees and exotic trees. However, if a tree is a declared
pest plant under the Land Act (eg. Cotoneaster,
blackberry, broom, pyracantha),
it cannot be a significant tree.
Gaining Approval
A person is required to write to the Conservator to obtain approval.
The conservator may give approval to remove a significant tree if,
after all reasonable steps to remedy the problem have proved ineffective,
the tree;
• is in decline and its life expectancy is short
• it represents unacceptable risk to public or private safety
• is causing or threatening to cause damage to a substantial
building, structure or service
• is an inappropriate tree for its location because of its
potential size or growth habitat
• is substantially
affecting solar access to the lessee's or a neighbour's lease between
9.00am and 3.-00pm during winter and pruning would not fix the problem.
The Conservator
can also give permission for a tree damaging activity other than
removal if (among other things);
• the
activity will have minimal adverse impact on the health of the tree
• the
activity is required because there is an unacceptable risk to public
or private safety.
The Conservator
must give written notice to the applicant, and to neighbouring lease
holders once the Conservator has made a decision. Any decision made
takes effect 28 days after the day on which notice was given to
the applicant and is in force for one year. A Conservator can cancel
the approval if the Conservator is of the opinion that the criteria
for approval are no longer met. A register must be kept of these
approvals and the public is able to view and copy the register.
A decision of
the Conservator can be reviewed by the ACT Administrative Appeals
Tribunal (see Fact Sheet 9).
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Damaging Trees
in Urgent Circumstances
Approval for
damage to a significant tree can be obtained after the tree is damaged
if the damage was caused in 'urgent circumstances by an act or omission
which was necessary to protect the health or safety of people or
animals, or public or private property'. The Conservator must be
notified of the damage in writing within 21 days of the damage occurring.
Tree Protection Under Planning Law
(ie
"Does a Developer need to get approval for tree damaging activity
as well as a development approval ?")
Development
is controlled by the Land (Planning and Environment Act) 1991
(the Land Act) and the Territory Plan. “Development”
includes work that would affect the landscape (except in residential
areas), so it can be argued that large scale removal of trees requires
development approval (see Fact Sheet 2 for information on the development
approval process, including rights to object). “Development”
also includes work affecting the landscape of a place listed in
the Heritage Places Register (see Fact Sheet 5). Such places sometimes
comprise or include trees.
The Territory
Plan provides that certain matters should be taken into account
in approving any development, not just work affecting the landscape
or a heritage place. Such matters include “retention of vegetation
and other natural features” and “effect on flora and
wildlife habitats”. Development can be approved subject to
conditions to ensure tree protection. It is important for anyone
concerned about the effect on trees of a development to make use
of any rights of objection (see Fact Sheet 2) and review (see Fact
Sheet 8) to ensure that conditions covering tree protection are
included in a development approval.
The Territory
Plan also includes Residential Design and Siting Codes for Single
and Multi Dwelling Developments. The Code for Multi Dwelling Developments
requires developers to submit vegetation surveys containing an evaluation
of existing trees including their species, height, dripline, trunk
diameter and condition, as well as identifying which are to be retained
or removed and for what reasons. However, the requirements only
come into effect when a development application is lodged. This
has resulted in some developers choosing to clear land prior to
lodging a development application. There is also no corresponding
requirement for single residential development. These problems with
the Design and Siting Codes limit their usefulness for tree protection.
Other provisions may provide more protection depending on the circumstances.
If a proposed
development triggers Environment Impact Assessment (see Fact Sheet
3), its impacts on flora, including trees, will be assessed and
will be required to be taken into account by the decision maker.
This consideration may lead to the imposition of tree protection
conditions in any development approval, or even result in refusal
of the development application.
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How are Native Trees Protected elsewhere in the Territory?
The Nature
Conservation Act 1980 makes it an offence to:
• fell or damage native timber on unleased land in the “built-up”
or urban area (eg within Canberra Nature Parks)
• fell or damage native timber on both leased and unleased
land in rural areas
unless a person is licensed. Licensing is controlled by the Conservator
of Flora and Fauna (see Fact Sheet 6).
Some exceptions
apply where the timber is on rural leased land and:
• it was planted by an occupier and felled by that or any
subsequent occupier
• the person believed that the felling was necessary to avoid
injury or damage to property
• the person intended to use the timber on the land where
it was growing
Exceptions also
apply to conservation officers (see Fact Sheet 4) and to persons
carrying out duties to prevent the outbreak of fires under the Bushfires
Act 1936.
The offence
provisions do not apply on urban leased land, however, the Tree
Protection Act covers trees on urban leased land.
The Nature
Conservation Act also provides that the Conservator can give
an occupier of land directions for the protection or conservation
of timber (see Fact Sheet 6). It also provides an offence of disturbing
the nests of native animals or the environment of such nests.
The Act also
provides protection for native plants through declarations of vulnerable
species and endangered ecological communities and species (see Fact
Sheet 6). Such declarations result in Action Plans, which include
management actions and protection measures. Such actions and measures
may involve the retention and maintenance of native trees.
The Act also
provides for a Nature Conservation Strategy for the ACT (see Fact
Sheets 4 & 6). While the Strategy deals generally with goals
and objectives for biodiversity conservation in a regional, strategic
context, it also contains specific actions to be taken, eg support
for community tree planting programs and the development of Territory
Plan Flora and Fauna Guidelines to apply to development proposals.
A Strategy Implementation Plan is prepared on an annual basis and
the community is encouraged to be involved in this process.
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What if a Neighbour’s
Tree is Causing Problems?
Trees commonly
cause problems between neighbours in residential areas because of
the spread of branches or roots from one property to another. The
common law of nuisance or negligence applies to such problems (see
Fact Sheet 1).
A legal nuisance,
in general terms, arises where a use of one property causes damage
to the neighbouring property or interferes with that neighbour’s
enjoyment of the property. It can be difficult to establish in other
than very obvious cases, eg where a neighbour’s trees shaded
a commercial orchard to the extent that the size of the crop was
affected.
Negligence arises
where a person can establish that he or she is owed a “duty
of care”, which has been breached by a neighbour and damage
has resulted. It could be established eg where a neighbour knows
that a tree is dangerous and does nothing to prevent injury, or
damage to the neighbour’s property, which is caused by the
tree falling.
Common law remedies
can be difficult to pursue because of the cost of necessary court
proceedings. However that said, actions involving a damages claim
of less than $10,000 may be pursued in the Small Claims Court at
minimal risk (although legal advice is still recommended). In any
case, negotiations between neighbours are suggested as a first step.
Mediation services can assist if initial negotiations are unsuccessful.
It is often beneficial to get professional advice from a tree surgeon
about the cause of the problem and the most effective way to remedy
it. The cost of such advice can be shared by the neighbours.
It is possible
to remove branches or roots spreading from a neighbour’s property
under the common law right of “self-help” or “abatement”,
however if this action is likely to cause irreparable damage to
the offending tree, it is not advised, as the owner of the tree
could then take action for such damage. Further it may amount to
a “tree damaging activity” which requires approval under
the ACT Tree Protection law.
What
if the neigbour's tree is causing damage and might be a significant
tree and they won't do anything about it ?
It is possible
to apply for approval to carry out a tree damaging
activity even if the tree is not located on your lease, ie is
located on the neighbour's property. The Act does not restrict who
may make an application (s.13).
This is relevant where there is a need for groundwork such as the
removal of roots that may be damaging fences, plumbing or driveways.
If you carry
out works within the drip line of a significant tree or elsewhere
in the "protection
zone" of a significant tree that amount to a tree damaging
activity without an approval, you could be liable for a
penalty.
In this situation seeking advice from Environment ACT about an approval
is the only safe course of action.
[ Top]
How can I appeal
a decision to allow destruction of Trees ?
If you disagree
with a decision about an application to undertake a tree damaging
activity you can discuss it with Environment ACT on 6207 5878 .
An appeal may be lodged with the Administrative Appeals Tribunal
to have the decision reviewed - but only if you
are the applicant, lessee or an adjoining lessee. (TP(IS) Act,
s.47(2)).
See our fact sheet on Challenging
Government Decisions.
It is important
to note that an appeal must normally be lodged within 28 days of
the making of the decision.
To lodge an
appeal with the AAT you will need to download and complete the relevant
Application
Form and pay a filing fee of $153 (subject to change).
The grounds
of the application can be attached as a separate page and should
at least refer to the Act, (particularly s.12, s.15) and associated
statutory criteria by which damage to trees is authorised.
Click
here to review the criteria that are applied by the Conservator
in making a decision to grant an approval for Tree Damaging Activity.
Go to News >
Recent Environmental Decisions to see how the AAT has approached
tree removal appeals in the past.
[Top]
How are Trees on Nature Strips Protected?
Nature strips
are unleased Territory land (see Fact Sheet 1). The Parks and Conservation
Service of the Department of Urban Services is the relevant management
authority and permission is needed to plant, prune or remove trees
from nature strips. It is an offence under the Trespass on Territory
Lands Act 1932 to damage or destroy trees on nature strips.
How are Trees
on Public Land Protected?
As discussed
in Fact Sheet 4, there are substantial areas of public land in the
ACT. The Land Act provides general management objectives for public
land, which incorporate conservation.
The Conservator
also has an obligation to prepare Plans of Management for areas
of public land as soon as practicable after they are declared in
the Territory Plan (see Fact Sheet.4). Such Plans address the conservation
of vegetation and wildlife habitats generally. Persons concerned
with protection of specific areas of public land containing trees
can participate in consultation on the Draft Plans (see Fact Sheet
4) and refer concerns to the Parks and Conservation Service (see
Fact Sheet 6). If concerns persist, they can be referred to the
Commissioner for the Environment or the Ombudsman (see Fact Sheet
8).
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How are Trees
on National Land Protected?
Because of its
status as the National Capital, the ACT has some areas which are
still managed under Commonwealth law by the National Capital Authority
(see Fact Sheet 2). Approval for works in these areas is required
from the Authority and persons concerned about the effects on trees
should contact the Authority about such works. Major works may require
an amendment to the National Capital Plan. The amendment process
provides opportunities for public comment (see Fact Sheet 2)
Proposed work
on national land, or to be carried out by a Commonwealth department,
or with Commonwealth approval may be subject to environment impact
assessment (see Fact Sheet 3), which may result in tree protection,
or in the work not proceeding .
Threatened species
of plants or animals on national land may be protected by the EPBC
Act. Recovery plans under this Act may provide for protection
of native trees in such areas.
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What about Tree Protection under NSW Law?
The ACT is bordered
by NSW, which also has specific legislative instruments dedicated
to tree preservation. The Native Vegetation Act 2003 (NSW)
is due to commence in 2005 and will replace the Native Vegetation
Conservation Act 1997. Those Acts make it illegal to damage
or destroy native vegetation without development approval from the
Minister administering the Act. Approval must be sought through
the local office of Department of
Infrastructure, Planning and Natural Resources or the local
Catchment Management Authority.
The Environmental
Planning and Assessment Act 1979 (NSW) provides for State,
Regional and Local Environment Plans. Local Environmental Plans
commonly incorporate Tree Preservation Orders, which then become
legally binding. Tree Preservation Orders apply to any land within
a local Council area (see Fact Sheet 1) and usually prohibit ringbarking,
cutting down, topping, lopping, removing, injuring or wilfully destroying
a tree without consent from the council. Breaching a Tree Preservation
Order is an offence which can be prosecuted in the Local or Land
and Environment Court.
[Top]
Further Information
and Contacts
For urgent threats to trees, contact Environment ACT on 6207 9777.
Environment ACT
MacArthur House
12 Wattle St
Lyneham ACT 2602
Ph: (02) 62079777
www.environment.act.gov.au
ACT Planning and Land Authority
Ground Floor, Dame Pattie Menzies House
16 Challis St
Dickson ACT 2602
Ph: 62071926
www.actpla.act.gov.au
National Capital Authority
Treasury Building
King Edward Terrace
PARKES ACT 2600
GPO Box 373
CANBERRA ACT 2601
Ph: 62712888
Fax: (02) 6273-4427
Email: natcap@natcap.gov.au
www.nationalcapital.gov.au
Commonwealth Department of Environment and Heritage
John Gorton Building
King Edward Terrace
Parkes ACT 2600
GPO Box 787
Canberra ACT 2601
Ph: 6274 1111
www.deh.gov.au
ACT for Trees
Downer Community Centre
Frencham Place
Downer ACT 2602.
(02) 6273 3452 or (02) 6249 6869
www.actfortrees.org.au
Conflict Resolution Service
281 Goyder St
Narrabundah ACT 2604
(02)6295 5998
www.crs.org.au
Legal
Advice Contacts
For legal
advice contact:
The Principal Solicitor
Environmental Defender’s Office ACT Inc.
GPO Box 574
Canberra ACT 2601
(02) 6247 9420
www.edo.org.au/edoact
Further
Information and Disclaimer
The law described in this Fact Sheet is current at March
2005.
The ACT EDO Fact Sheets have been designed to give readers plain
English background knowledge to planning and environmental decision
making in the ACT. The ACT EDO Fact Sheets cannot replace the need
for professional legal advice in individual cases.
The information
contained in this publication is for general reference only. If
you are contemplating legal action, you should seek legal advice
on the specific facts of your case as soon as possible. These Fact
Sheets cannot replace the need for professional legal advice in
individual cases.
Duplication
and reproduction of the information provided in any ACT EDO Fact
Sheet is permitted with acknowledgment of the ACT EDO as source.
The ACT EDO
Fact Sheets Project was carried out with the assistance of funds
made available by the ACT Government under the ACT Environment Grants
Program.
Important:
These fact sheets provide a summary of the law and are not intended
to be comprehensive or to cover the specifics of any given situation.
While every effort has been made to ensure the content is as accurate
as possible, the EDO does not accept any responsibility for any
loss or disadvantage resulting from reliance or use of this work.
Readers are advised to seek professional legal advice in relation
to specific legal questions.
Other
Fact Sheet Titles
Note: Some
other fact sheet titles are unavailable at this time as they are
being updated following legislative amendments and administrative
changes. These fact sheets will be added as soon as possible.
Fact Sheet 1
Environmental and Planning Law in the ACT
Fact Sheet 2 National Capital Plan and the Territory Plan
Fact Sheet 3 The Development Approval Process
Fact Sheet 4 EIA Law in the ACT
Fact Sheet 5 Management of Public Lands
Fact Sheet 6 Heritage Law
Fact Sheet 7 Biodiversity Protection Law in the ACT
Fact Sheet 8 Tree Protection
Fact Sheet 9 Reviewing Environmental Decisions
Fact Sheet 10 Pollution Control Law in the ACT
Fact Sheet 11 Noise Pollution Control in the ACT
Fact Sheet 12 Freedom of Information
Law in the ACT
Fact Sheet 13 Freedom of Information Law (Commonwealth)
For information
about State environmental legislation, visit the national EDO website.
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