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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-11-17 Daily Xml
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DEVELOPMENT (REGULATED TREES) AMENDMENT BILL

Second Reading

Second reading.

The Hon. M.F. O'BRIEN (Napier—Minister for Employment, Training and Further Education, Minister for Road Safety, Minister for Science and Information Economy) (12:53): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Development (Regulated Trees) Amendment Bill 2009 is proposed to clarify the intent and application of legislative controls applying to urban trees, and as such it is useful to recall the legislative history of this matter.

On 20 April 2000, the commencement of the Development (Significant Trees) Amendment Act 2000 amended the Development Act 1993 to include specific legislative controls applying to the removal or damage of trees in designated urban areas.

The primary intent of this legislation was to halt the wanton and unchecked removal of Adelaide's large urban trees in balance with the need to achieve appropriate development of urban areas. The new controls established a development assessment process for proposals to remove or prune (other than for maintenance pruning) all trees in certain areas of the state above a threshold of trunk circumference size prescribed in accompanying regulations. Since their inception, however, the controls have been interpreted by some to mean that all trees above the threshold size must not be removed. This is not correct. The relevant development assessment policies set out in the development plan for each council area provide the grounds for the assessment of such applications by the relevant planning authority-typically, a council development assessment panel.

Furthermore, following the commencement of the controls, nearly all councils have required applicants to supply, at the applicant's expense, a report from an arborist at the time of originally lodging a tree removal development application. In practice, this adds from $350 to $700 for each tree removal application to the prescribed minimum development assessment fee of $82 per application. The widespread implementation of this requirement is unduly onerous for many tree owners. The preparation of an arborist's report is not a statutory requirement but an administrative requirement sought as further information by a council.

This bill proposes to clarify the intent and application of legislative controls with respect to urban trees. This is proposed to be achieved by simplifying the development process for the majority of trees above the prescribed trunk circumference threshold through the introduction of a two-tier system of tree classification and assessment. The first tier will be 'regulated trees', and the second tier will be 'significant trees'.

A regulated tree will be subject to a preliminary assessment of whether the tree is significant which is intended to be based on whether the tree contributes in a measurable way to the character and visual amenity of a site and its locality or has a biodiversity value as a specimen in its own right. These qualitative criteria are proposed to be introduced into the Development Regulations 2008. Complementary changes will also be made to the regulations, in particular by increasing the number of exempted species.

A tree determined by a council to satisfy the prescribed criteria would then be determined to be a 'significant tree' and would then go on to the second tier of the assessment process and be subject to stronger development plan policies for retention than regulated trees. It is at this second stage that councils may require an applicant to provide an arborist's report such as to determine the health, safety and integrity of the tree. In other cases, no professional report should be required and a simpler assessment process will apply. As a consequence, the bill has been designed to reduce the cost for the majority of applicants.

The bill will also provide opportunities for councils, who wish to do so, to list trees that may fall below the two-metre circumference threshold as 'significant' in their development plan, through a plan amendment process. This will enable councils to undertake a level of variation, in addition to the uniform threshold size, by allowing them to tailor their development plans to better reflect local circumstances. It is also envisaged that in some rare circumstances councils may wish to list individual trees or clusters of trees from exempt species as significant trees should this tree or cluster make an important contribution to the character value of a particular street or park, for example.

Inherent in this bill's approach is the need for councils to undertake a balanced planning assessment. In this regard it is acknowledged that consistency in decision making between councils in relation to trees, whilst being desirable, may not be readily achieved. When one considers the degree of geographical, topographical and historical difference between areas of metropolitan Adelaide, this is considered to be a reasonable approach. In this regard, in much the same way as local heritage and character of the local issues, councils are best placed to manage the conservation of trees in an urban landscape, given their understanding and representation of their community's views.

The member for Fisher has written to the Minister for Urban Development and Planning in relation to this bill, asking whether the amendments will allow the use of Australian Standard 4970-2009—'Protection of trees on development sites'. This is a new Australian Standard and was released on 26 August 2009.

The standard is described as providing guidance:

'on the principles for protecting trees on land subject to development. It follows, in sequence, the stages of development from planning to implementation. This Standard aims to assist those concerned with trees in relation to development. Where development is to occur, the Standard provides guidance on how to decide which trees are appropriate for retention, and on the means of protecting those trees during construction work. It does not argue for or against development, or for the removal or retention of trees nor does it consider the monetary value of trees. The Standard does not apply to the establishment of new trees.'

The Standard would appear to be useful for anyone undertaking development on sites that include a protected tree. The Development Act 1993, as it currently stands and after these proposed amendments, would still protect regulated or significant trees from 'tree-damaging activity'. Any potential reference to the Standard would need to occur through the Development Regulations 2008. At this stage, it is not appropriate to indicate how the Standard might be used, until a review of its usefulness is undertaken in consultation with stakeholders. Having said this, I commend the Member for his suggestion.

The bill will also enable councils to establish an urban trees fund with such moneys being used for the purpose of planting trees in the council area. The payment of moneys into these funds is to apply as an option where the removal of a significant tree or a regulated tree of a class prescribed by the regulations is approved.

The bill has also considered the concerns raised by my parliamentary colleagues' constituents to address the administration of the controls and development assessment costs incurred in making a tree removal development application. I commend this bill to the house.

Mr GRIFFITHS (Goyder—Deputy Leader of the Opposition) (12:54): It is my pleasure to make a brief contribution on behalf of the opposition. I indicate that I am the opposition lead speaker on this bill, and I think that I will be the only speaker. Given that we have 5½ minutes left, we will see what is possible to get through. My understanding is that this bill was originally introduced in the other place by the government in 2006. It was debated through to the committee stage before lapsing in 2008.

The bill has been pursued again by the Hon. Dennis Hood, who moved it as it existed within the government, and the government chose to support it in the other house. In reviewing the Hansard contributions, I note that the opposition has not supported this bill. The Hon. Mark Parnell, a member of the Greens, also has not supported the bill. I hope that I have interpreted that correctly. There are specific reasons as to why that has occurred. I do recognise, of course, that trees are a very emotive issue for many people. They are an important part of our landscape.

Many trees have a cultural or heritage significance to the community in which they are located, but there are occasions where trees, sadly, do get in the way of opportunities for things to occur. However, it is important that processes are in place to support the retention of trees and also on occasions to support the removal of trees where support does exist. Certainly, in his contribution in the other place, the Hon. David Ridgway expressed concern that, at the time of the debate occurring, the regulations upon which much of the legislation depended were not available for review.

I do respect the fact, of course, that, as this was a private member's bill, a private member would not normally draft government regulations and therefore that is the responsibility of the government upon passage of the bill. That did create some concern. In fact, it has been a concern of the opposition for some time that, in terms of the passage of legislation which relies upon regulations, we have that data in front of us at the time of considering it. The Hon. David Ridgway also expressed considerable concern about the Urban Trees Fund, which, as we understand it, will be used to ensure the planting of trees in an immediate area. I believe it is more of a fixed range, not necessarily a sliding scale.

Concern was also expressed about 'make good orders' in special instances where a tree has been removed or affected in such a way that it must be removed because it is no longer safe. It is also fair to say that many people are concerned about the impact of falling branches and boughs from large trees and the impact upon property improvements. It is those people who have sought the opportunity for removal of trees. Equally, though, I recognise that many people will fight tooth and nail to ensure the protection of trees and that in fact they stay.

In reviewing the Hansard debate from the other place, I note that the government submitted some 27 amendments. Several amendments were also submitted by the Hon. John Darley. The intention of the legislation is to create a two-tier system of assessment for the removal of the trees. The first tier depends on the circumference of the tree or, in fact, its age and its importance to the heritage area. For the second stage an arborist's report is often required by the council to support any application for the removal of a tree. A cost is associated with that, obviously, and that leads to payment into the Urban Trees Fund.

I can understand the concern that exists and, in reviewing the file provided by the shadow minister, a diversity of opinion was expressed to him by some people strongly against the proposal for the introduction of this bill, and other people strongly supported the bill. That in itself creates difficulties for the parliament when it considers how it must advance. The responsibility of all members is to form opinions. In this case, the opposition in the other place determined that it would not support the bill.

However, it recognised the realities of the numbers, the fact that it had passed through the upper house and that support by the government in the lower house meant that it would be enacted into law. With those brief words, I confirm that the opposition does not support the bill but understands that the bill will pass through the house.

The Hon. R.B. SUCH (Fisher) (12:58): Members may recall that the original significant trees provisions came about as a result of strong lobbying by me many years ago. The Hon. Diana Laidlaw brought in the protection for significant trees, which was designed principally to protect river red gums. Principally it has done that, but that original proposal over time got misinterpreted by some councils which used it to protect every tree or any tree that met the physical dimensions. It was never the intention of the committee or group that drew up that original proposal to protect Pinus radiata at Prospect. That was never the intention.

Anyway, it is fair to say that I think that that original significant tree requirement did save many of the very large trees, but its very narrow definition of 'significant' meant that anything that was smaller than the specified size was not protected necessarily, and in that regard you could end up eventually having no large trees because all the smaller ones could legally be removed. There was a contradiction there. Mr Speaker, I seek leave to continue my remarks.

Leave granted; debate adjourned.


[Sitting suspended from 13:00 to 14:00]


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