Trees not protected under the Tree Protection Act

Introduction

As previously noted, the Tree Protection Act only provides protection for trees on land in built-up urban areas (s 7). In particular, it provides protection for protected trees, being regulated trees on leased territory land within a tree management precinct, or registered trees. Protection for trees which are not registered trees in areas such as leased rural land or on unleased land, such as public parks, reserves, nature strips, forestry plantations and land designated for urban development, comes from the following four Acts:

• Nature Conservation Act 2014 (ACT)
• Trespass on Territory Land Act 1932 (ACT)
• Heritage Act 2004 (ACT)
• Public Unleased Lands Act 2013 (ACT).

In combination with the Tree Protection Act, these Acts provide for some form of tree protection across territory land, with the exception of exotic non-heritage listed trees on leased rural land. It should also be remembered that Commonwealth heritage legislation has the ability to provide some protection for trees.

Nature Conservation Act 2014

References in this section relate to the Nature Conservation Act 2014 (ACT) (‘Nature Conservation Act’).

The objects of the Nature Conservation Act are to protect, conserve and enhance the biodiversity of the ACT (s 6(1)) through supporting the management and maintenance of biodiversity (s 6(2)(b)) and promoting community involvement (ss 6(2)(c)-(g)).

Under the Nature Conservation Act, it is an offence to fell or damage standing native timber, damage or remove fallen native timber (with a diameter greater than 10 cm) on unleased land or leased rural land, without a licence (div 6.1.3). The conservator is responsible for issuing the licences. There are some exceptions to this general rule. For example, damage to native trees on leased rural land does not occur when:

• the tree was planted by an occupier of the land and damaged by an occupier of the land
• the tree was damaged by an occupier of the land with the intention of using it on the land (not for sale)
• the person has a reasonable excuse
• the person is authorised under a development approval under the Planning Act (s 145).

Similarly, a licence is not required in respect to damage to fallen native timber on unleased land if the timber is less than 10 cm in diameter.

Licences are not required for felling trees to prevent or fight fires or to protect life and property where this is done by someone involved with the fire brigade or bushfire service, or by a police officer in the exercise of a function under the Emergencies Act 2004 (ACT) (Tree Protection Act 2005 (ACT), s 19(1)(f)). Where public servants are carrying out their duties, no licence is required for activities such as:

• taking native plants on unleased land (s 140(2)(a))
• taking a protected native plant (s 142(2)(a))
• taking a native plant with special protection status (s 143(2)(a))
• damaging native trees on unleased land (s 144(2)(a))
• damaging or taking fallen native timber (s 146(3)(a)).

Under the Nature Conservation Act it is an offence to clear native vegetation in a native vegetation area, being a reserve, where the clearing causes serious harm to the reserve (s 236(1)). Similarly, it is an offence to disturb a native animal nest or its environment without a licence (s 128).

The Act allows for the conservator to make specific directions for the protection or conservation of native trees on occupied land (s 331(1)). Under the Act the minister may declare an ecological community critically endangered, endangered, vulnerable or provisional (s 70), and a native species critically endangered, endangered, vulnerable, conservation dependant or provisional (ss 64(3)-(7)). The conservator is require to produce a draft action plan once an ecological community or native animal is declared critically endangered, endangered or vulnerable (ss 100-1, see also s 98). The draft action plan sets out proposals to ensure, as far as practicable, the identification, protection and survival of the community (s 100(a)(ii)) (see Chapter 5 in this Handbook for more detail on all these matters).

The Nature Conservation Act also creates an offence of clearing native vegetation in a reserved area, with higher penalties if the clearing causes harm to the area (Part 9.4 Division 8.2). Offences under Chapter 9 do not apply to a person if:

• conduct constituting an offence is a restricted activity and the person is complying with the directions and requirements of an activities declaration, management agreement or controlled native species management plan

(s 252(2)(a))

• the person is authorised under a nature conservation licence, a strategic bushfire management plan under the Emergencies Act 2004, a development approval under the Planning and Development Act 2007 or a public unleased land permit (s 252(2)(b))
• that person is a conservation officer exercising his/her duties under the Nature Conservation Act (s 252(2)(c)).

Under Part 14.2, conservation officers may enter premises for the purposes of inspection or examination, taking measurements or conducting tests or taking samples (s 341). Conservation officers may also seize things if an officer is satisfied on reasonable grounds that the thing is connected with an offence against the Nature Conservation Act 2014 (s 342).

Trespass on Territory Land Act 1932

References in this section relate to the Trespass on Territory Land Act 1932 (‘Trespass on Territory Land Act’).

The Trespass on Territory Land Act provides some protection to trees on unleased territory land and land occupied by the territory. It states that a person shall not damage or destroy trees in these areas without a reasonable excuse (s 7). Both native and exotic trees are covered under this section.

Trees on nature strips are an example of trees on unleased territory land covered by the Trespass on Territory Land Act. The Parks, Conservation and Land (PCL) agency within TAMS manages nature strips as well as other unleased urban land.

All plantings on nature strips, even those planted by residents, are the property of the ACT government. It has the responsibility for managing trees on nature strips, including performing tree surgery, pest control and tree removal. Before a householder can remove a tree from a nature strip, or landscape a nature strip, permission must be obtained by way of a nature strip development application from TAMS. More information, including PCL’s tree policy, can be obtained from the TAMS website (see Contacts list at the back of this book).

Heritage Act 2004

References in this section relate to the Heritage Act 2004 (ACT) ('Heritage ACT').

Trees can be listed on the heritage register, created under the Heritage Act. Urban trees can be registered if that tree forms part of a place and the heritage council decides to register the place (s 3B). Places can be registered if it is important to the ACT’s cultural or natural history, including representing rare, uncommon or endangered aspects of the ACT’s history (s 10). A place can also be listed for its natural heritage significance where it has scientific value for its biodiversity, landform or other naturally occurring elements (s 10A).

Part 10A specifies the heritage council and representative Aboriginal organisation’s role in advising about tree protection notices about damaging tree activity or tree management plans. Listing on the heritage register opens a number of avenues of protection, such as offences for diminishing heritage significance of place or object (s 74; see Part 13 generally) (see Chapter 9 in this Handbook for more information on ACT heritage law).

Public Unleased Lands Act 2013

The Public Unleased Lands Act provides some protection to registered trees overhanging, causing obstruction, or otherwise endangering the safety of anyone using public unleased land (s 31). It states that if the tree is registered then a tree protection approval for the pruning or removal (issued pursuant to the Tree Protection Act) must be in force before the director-general may issue a plant pruning direction or a plant removal direction (issued pursuant to the Public Unleased Lands Act). A tree protection approval is not needed for the pruning or removal of regulated trees (see Chapter 7 in this Handbook for more information on the law relating to public land).