Other protection mechanisms

Tree protection directions

The conservator has the power to issue directions in respect to a protected tree (s 76). A direction is given to the owner or occupier of the land on which the tree is located or to someone undertaking an activity that may affect a protected tree. The direction must be in writing and examples may include a requirement to:

• stop the damaging work
• erect a fence around the tree to protect it
• drain the area around the tree where it has become flooded
• prune the tree to correct damage to the tree.

Planning and land development applications

Under the Planning and Development Act 2007 (ACT) (‘Planning Act’) the conservator is to receive a copy of any development application (DA) in the merit track or the impact track if the application relates to any part of a declared site (ss 148-9, as per the Planning and Development Regulation 2008 (ACT) reg 26) (see Chapter 3 in this Handbook for more information on DAs and the assessment tracks). If the conservator believes that a development is likely to result in damage to a protected tree or affect a tree protection zone or declared site, the conservator can give ACTPLA written advice on the matter (Tree Protection Act, s 82). The advice must include advice about tree protection requirements for each protected tree with a protection zone on the land subject to development (Tree Protection Act, s 83). This advice needs to be considered by ACTPLA (or the minister) in making its decision on a DA (Planning Act, ss 120(e), 129(e)).

Approval inconsistent with the conservator’s advice in relation to regulated trees can be issued only in certain circumstances as prescribed in the Planning Act. Approvals that are inconsistent with the conservator’s advice about regulated trees may include situations where the approval is consistent with the objects of the territory plan and realistic design solutions, alternatives or applicable guidelines have been considered (ss 119(2), 128 (3)).

Development approvals which are inconsistent with the conservator’s advice in relation to a registered tree or a declared site cannot be issued (Planning Act, ss 119(3), 128(4)) unless expressly allowed under the Act. Such an express allowance is currently in place for any DA, through the merit or impact track, relating to light rail development.

Generally, development approval must not be given for a proposal in the merit track if the approval would be inconsistent with the advice of the conservator where the development concerns a registered tree or a declared site (s 119(3)). An exception to this rule applies if the development is related to a light rail development proposal, and if the proposal does not affect a protected matter. A ‘protected matter’ is defined under section 111A of the Planning Act as a matter protected by the Commonwealth or a protected matter as declared by the minister. The Planning and Development (Protected Matters) Declarations 2015 (No. 1) contains a Schedule of species declared as a protected matter for the purposes of the Planning Act. There are currently no species of trees listed in this Schedule.

If no protected matter is involved and the decision maker (usually ACTPLA) is satisfied that an entity’s advice, including the conservators, will risk significant delay, increase the cost or be a significant impediment to the development, the entity’s advice may be disregarded (s 119A). Section 119A(2) expressly excludes the above described protection for registered trees pursuant to section 119(3), thus allowing the conservator’s advice relating to a registered tree to also be disregarded.

Likewise, generally development approval must not be given for a proposal in the impact track if approval would be inconsistent with the advice of the conservator where the development concerns a registered tree or a declared site (s 128 (4)). Similar to the merit track, the Planning Act provides for a light rail exception. Where the development proposal is related to light rail and does not involve a protected matter, the decision maker may grant approval regardless of any inconsistent entity advice, including the conservators, where it is satisfied that the entity’s advice will risk significant delay, will increase the cost or be a significant impediment to the development to which the proposal relates (s 128A). Section 128A(2) excludes the requirement that a light rail proposal be consistent with the advice of the conservator in relation registered trees or declared sites. However, unlike its merit track equivalent, this section does not specifically exclude section 128(4) which otherwise provides specific protection for registered trees or declared sites. This part of the legislation creates an ambiguity as to the issuing of a DA where the proposal is in the impact track, relates to light rail and is inconsistent with the conservator’s advice relating to a registered tree or declared site.

Restricted information

Certain information about a registered tree or a tree nominated for registration can be deemed to be restricted information. This is done under Part 8 of the Tree Protection Act. Whether information is restricted is determined by the conservator. A declaration of restricted information can only be made if either:

• public disclosure of the information is likely to have a substantial adverse effect on the values for which the tree is or may be registered; or
• the tree is an Aboriginal heritage tree.

Aboriginal heritage trees are trees of particular significance to Aboriginal people because of Aboriginal tradition and/or the history of any Aboriginal people of the area in which the tree is located (see Chapter 9 in this Handbook for more information on heritage law).

If the conservator makes a declaration about restricted information, under sections 63-4, the conservator must try to give a copy of the declaration to:

• the person who nominated the tree
• the lessee of, or land management agency for, the land on which the tree is located
• the lessee of, or land management agency for, land adjoining the land on which the tree is located and which is within 50 m of the tree
• the Heritage Council, where the tree is an Aboriginal heritage tree or if the tree has or may have other heritage significance
• if the tree is an Aboriginal heritage tree, each representative Aboriginal organisation.

The conservator may approve the publication of restricted information where satisfied it will not lead to a substantial effect on the tree’s registration values. Requests for publication of restricted information must be in writing; state the information to be disclosed, the reason for disclosure and the nature of the publication (s 66).

Restricted information may also be provided to someone considering buying the land if they request access to the restricted information relevant to the conservation and use of the land. Where such a request occurs the conservator is obliged to provide a written copy of the relevant restricted information. Any of the people or organisations to whom the conservator must try to give a copy of the declaration to (see above) can request the information if the land upon which the tree is located is offered for sale.

Review of decisions

The Tree Protection Act provides for the review of some of the conservator’s decisions. Decisions may be internally reviewed (s 105) or reviewed by ACAT (s 107B) (see also Chapter 12 in this Handbook for further information about ACAT).

For internally reviewable decisions, an application must be made in writing within 14 days after the day the notice of the decision is given to the entity. The application must set out the grounds upon which reconsideration is sought (s 106). Upon receiving an application, the conservator must seek the advisory panel’s advice on the application. The advisory panel must give their advice to the conservator within 30 days. After receiving the advisory panel’s advice, the conservator must make a decision considering the advisory panel’s advice (s 107).

Internally reviewable decisions, as listed in Schedule, 1 Part 1.1 of the Act, are decisions to:

• approve, or refuse to approve, activity (s 25)
• cancel approval of activity (s 28)
• approve, or refuse to approve, a tree management plan (s 35).

Reviewable decisions (by ACAT), as listed in Schedule 1, Part 1.2 of the Act, are decisions to:

• approve or refuse to approve registration of a provisionally registered tree (s 52)
• cancel or refuse to cancel registration of a tree (s 58)
• site declarations (s 61)
• approve, or refuse to approve, the publication of restricted information (s 66)
• tree protection directions (s 76)
• decisions that have been internally reviewed (s 107).

There is no provision in the Tree Protection Act for third party appeals to ACAT.