Illegal damage to protected trees

It is an offence to damage a protected tree without approval, as well as to undertake prohibited ground work in the protection zone of a protected tree (sections 15 to 18 of the Tree Protection Act 2005). Unless otherwise defined in a tree management plan, the protection zone is measured in relation to the canopy of the tree and the four metre wide area surrounding the trunk (section 11 of the Tree Protection Act 2005).

Legal damage to protected trees and approval for damage/groundworks

Damage to a protected tree is permitted in certain circumstances (section 19 of the Tree Protection Act 2005).

Minor pruning

Minor pruning of a protected tree is permitted without approval.

1. For registered trees, minor pruning is limited to removing deadwood, removing limbs with a diameter of 50mm or less, or the first pruning of the tree in the calendar year, which affects less than 10 per cent of the canopy and does not change the overall shape of the canopy (section 13(2)(a) of the Tree Protection Act 2005)
2. For protected trees, minor pruningis pruning performed in accordance with the Australian Standard on Pruning of amenity trees (AS 4373) that does not affect the general appearance of the tree or if it is a fruit tree, if it is done in accordance with the Standard and is done for fruit production (section 13(2)(b) of the Tree Protection Act 2005).

However, major pruning, lopping and pollarding requires approval (section 12 and section 13 of the Tree Protection Act 2005) (see below).

Activities that may damage a protected tree or may be prohibited groundwork

In general, activities that may damage a protected tree or may be prohibited groundwork require the approval of the Conservator under section 25 of the Tree Protection Act 2005. The approval criteria for such activities are set out in the Tree Protection (Approval Criteria) Determination 2006 (No 2), which is determined by the Minister under section 21 of the Tree Protection Act 2005.

For example, the Conservator may give an approval to damage a regulated tree under section 25 of the Tree Protection Act 2005 if the tree meets the following approval criteria (section 1(1) of the Tree Protection (Approval Criteria) Determination 2006 (No 2));

• it is in decline and its life expectancy is short;
• it represents an unacceptable risk to public or private safety;
• it is causing or threatening to cause substantial damage to a substantial building, structure or service;
• it is an inappropriate tree for its location because of its potential size or growth habit (excluding remnant eucalypts);
• it is substantially affecting solar access to the lessee's or a neighbour's lease between 9am and 3pm during winter and pruning would not fix the problem (excluding remnant eucalypts);
• it is causing an allergic reaction to someone who lives on the property and the claim is supported by a medical specialist's certificate; and
• it is part of a close planting and its removal would enable the other trees to develop fully.

In relation to major pruning, section 3 of the Tree Protection (Approval Criteria) Determination 2006 (No 2) provides that approval for major pruning of a registered tree may only be given if:

• the work is required:
• to maintain the health and safety of the tree; or
• to maintain clearance from services; or
• as a remedial treatment;
• the work is necessary and will not:
• substantially alter the tree's shape or form; or
• cause the tree to become unsafe; or
• result in the decline or death of the tree, or necessitate its removal or destruction.

Section 1(5) of the Tree Protection (Approval Criteria) Determination 2006 (No 2) provides that major pruning of regulated trees may be approved when:

• the work is required:
  • as a remedial treatment; or
  • in the general interests of the health of the tree; or
  • to reduce an unacceptable risk to public or private safety; or
  • to reduce the risk of damage or prevent further damage to a substantial building, structure or service;
• the tree is substantially affecting solar access to the lessees lease, or neighbouring lease, during winter between the hours of 9am to 3pm and minor pruning is not sufficient to remedy this (excluding remnant eucalypts).

A decision under section 25 must be made within 30 days of receiving an application. Urgent approvals to undertake prohibited activities may be granted where the activity is urgently required to protect the health or safety of people or animals, or public or private property (section 29(3)(b) of the Tree Protection Act 2005).

What if a protected tree is being damaged illegally?

The Conservator can issue directions (in writing) to the owner or occupier of land where a protected tree is located, or anyone undertaking an activity that may affect a protected tree, to do or not do something for the protection of the tree (section 76 of the Tree Protection Act 2005). A direction must be given in accordance with the Tree Protection (Criteria for Tree Protection Directions) Determination 2006 (No 1). Examples of directions under section 76 may include a direction to stop the damaging work, erect a fence around the tree, drain the area around the tree that is flooded, or prune the tree to correct any damage.

What if a protected tree will be affected by a proposed development?

The planning and land authority must refer certain development applications to the Conservator (section 148 of the Planning and Development Act 2007 (ACT) and regulation 26 of the Planning and Development Regulation 2008 (ACT)). For example, the authority must refer a development application in the merit track to the Conservator if the application relates to any part of a site declared by the Conservator under section 61 of the Tree Protection Act 2005 (regulation 26(2) of the Planning and Development Regulation 2008 (ACT)). If the authority refers a development application to the Conservator, the Conservator must give the authority advice in relation to the development application (section 149 of the Planning and Development Act 2007).

In addition, if the Conservator believes that a development will damage a protected tree or affect a tree protection zone or declared site, the Conservator can give written advice to the planning and land authority about the development (section 82 of the Tree Protection Act 2005).

The authority’s decisions cannot be inconsistent with the Conservator's advice (section 119(3) through to section 128(3) of the Planning and Development Act 2007), with certain exceptions (section 119(2) of the Planning and Development Act 2007 and section 128(2) of the Planning and Development Act 2007).

For more information please refer to the detailed chapter on Tree Protection provided by the Environmental Defenders Office which can be accessed here.