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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2007-10-18 Daily Xml
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DEVELOPMENT (REGULATED TREES) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 11 September 2007. Page 645.)

Clause 4.

The Hon. P. HOLLOWAY: I would like to make some general comments. I have been extremely disappointed with some of the media comment about this regulated trees bill that has been going out, particularly some of the comments that have been attributed to the Hon. Ms Kanck and others, because I believe they have greatly distorted what this bill is really all about. This bill seeks to find a balance in relation to trees. Trees have always been a difficult issue, and I have made the comment on numerous occasions in the past that I do not believe anyone could say that the current legislation has been working well. We see every day where people criticise decisions made when some significant trees are cut down. At the same time, I receive numerous complaints from members of the public, particularly in the more densely settled suburbs, where people went to their nursery 20 or 30 years ago and brought back a tree that turns out to be totally inappropriate; that their house is cracking due to the planting of inappropriate trees.

There are complaints about the delays and the cost involved with getting development approval to remove trees that people themselves planted inappropriately some years ago. Indeed, what really annoys me are some of the comments that have been attributed to some members of this place that somehow or other this bill is purely designed to protect developers; in fact, nothing could be further from the truth. Indeed, property developers do not support this legislation because of measures such as the ‘make good’ orders. A prominent developer who, I think, might be running for office in one of the federal seats for the Liberal Party at the moment has had his problems with tree removals in the Mount Barker area. Of course, what happens with a lot of developers in that position is that they just cut down the trees and basically challenge councils and other development authorities to take action.

This bill will enable people to make good orders so that, if developers or other individuals cut down a significant tree in defiance of the Development Act—in other words, if they do not have the appropriate approval—there is the capacity, through these make-good orders, to ensure that they pay an appropriate penalty for ignoring the act. This bill will also set up an urban trees fund so that money that is used to pay for the development assessment in relation to the trees can go to planting new trees in more appropriate locations. There is also a third arm of that in that this bill provides additional protection to those trees that might be less than a significant size; in other words, less than two metres in girth and a metre above the ground, which is the criteria we have used. The example that is often given is the grey box trees, particularly in the Mitcham Hills area. Those trees are not protected under the current act, but they will be brought in under this legislation.

So, in those three significant ways, trees will be given greater protection. However, at the same time, as part of the balance under this legislation, we are also intending to make it easier for the people concerned (particularly in our western and northern suburbs) have inappropriately planted trees. They may have gone to the Belair Nursery and picked out a lemon-scented gum or some fast-growing species, and 20 or 30 years later it is cracking their house. They have been told by some councils, which I believe have inappropriately interpreted the laws passed by this parliament (and the courts have, indeed, in some cases backed that up)—not with the backing of the Development Act, but because of their policies—to pay hundreds of dollars in getting approvals even though the fact of whether or not a tree is healthy is irrelevant. If it has been inappropriately placed and it is cracking a house, it should be a structural engineer, not an arborist, who does it. That is what this legislation sought to do; it sought to get a balance.

On the one hand, we could exempt a number of species from the act which create problems—and I will give a list of them in a moment; it has been supplied to the opposition. At the same time, there was also protection for a lot of our indigenous species, particularly river red gums. Because there has been a lot of misinformation about this bill, many people are now complaining about the destruction of some river red gums by developers. In fact, this legislation would provide some teeth for dealing with those issues. This bill has been so misrepresented in debate recently that I accept that we have reached the stage now where we really need to take a vote on it. If it is not carried by parliament, so be it. However, I can say that the government will be forthright in reminding the public of South Australia what our bill was trying to do and what problems it was trying to solve. If it is defeated, we will certainly be letting people know that the solution to many of the problems we face will not be available if this measure is not passed by the parliament.

When we last discussed this bill, the opposition wanted to ask some questions about regulations. During the intervening two weeks we have supplied to the opposition some information about the regulations. As I indicated, we cannot provide the full set of regulations at this stage, because we do not know what this bill will look like in its final form. I think, in the interests of debate, I can at least point out what the regulations might look like in relation to the sorts of trees that might be exempted: I think that is an important point.

The preparation of the regulations associated with the proclamation of any regulated trees amendment act would need to be undertaken in consultation with the LGA once the structure of the amendment act, as passed by parliament, is known. In the meantime, some current options include the following: for exemptions the regulations could address (a) the exemption from the need to gain approval to remove any regulated tree located within 3 metres of specified classes of building or structures—for example, dwellings or swimming pools; and (b) the exemption from the need to gain approval for the following species of trees unless otherwise prescribed or listed as a significant tree in the development plan.

I can give some examples of those: Argonus flexuosaor willow myrtle; the tree of heaven; the narrow-leafed ash; the desert ash; Norfolk Island hibiscus; giant honey-myrtle; bracelet honey-myrtle; prickly-leafed paperbark; olive trees, of course; Aleppo pines; willows, which, of course, are being cut down all over the place from rivers; the crack willow; the white crack willow; basket willow; the golden weeping willow; and the Athel pine, or tamarisk. In addition, it is likely that regulations could exempt the following trees in prescribed council areas, for example: Pinus radiata in the Adelaide Hills council and other council areas as requested.

That is the sort of thing the government will be looking at in this tree legislation: exempting those species. Members might recall that when this bill was first moved by the Hon. Diana Laidlaw back in 2001, the requirement in relation to a significant tree was not just the size of the tree, but it also had to contribute to the amenity of the area and had to be significant in terms of the contribution to biodiversity. Of course, I think it was understood by all of us who were in parliament at the time debating that bill that it was a way of providing that some of these trees (such as olive trees, Athel pines and Mediterranean pines and the like which are, in fact, declared as weed species in many respects in the Hills areas) should not be protected. It was never envisaged in the original legislation that those trees should be protected, but some councils have, in fact, taken it that way. One of the proposals under this bill was that these species could be exempted.

In addition, the regulations could address the matter of the species of trees in question being subject to gaining approval prior to removal, even though they may not meet the 2-metre circumference criteria. An example I have already given is the grey box trees with appropriate lower circumference thresholds in prescribed areas of the Mitcham Hills and any other areas requested by other councils. In summary, the regulations will involve introduced species, fast-growing species—almost pest species in many ways—where you would exempt them from the operations of the regulated trees act. You would also include some trees that are very significant to biodiversity but do not grow to such a large size.

The regulations could also address the matter of requiring the replacement of two trees, or whatever number, for every regulated tree approved to be removed. It could require the replacement of four trees for every significant tree removed; it could require the payment of a certain fee for every replacement tree not planted as part of an approval to remove a regulated tree; that is, if no replacement trees are planted then the contribution to the Urban Tree Fund could be, say, $300 for every regulated tree; and you could require the payment of a sum for every replacement tree not planted as part of an approval to remove a significant tree. For example, if no replacement trees are planted the contribution to the Urban Tree Fund could be a certain figure for every significant tree. These were the matters that were going to be addressed by regulation. As that was raised when we last debated this, I think I should at least put it on the record.

I have received a significant amount of correspondence on this matter; some of it, of course, was based on misinformation. I also received some correspondence from people such as the Chairperson of the South Australian Society of Aboriculture, who wrote to a number of people, myself included. It says:

Recent email correspondence distributed by one-of SASA's—

the South Australian Society of Aboriculture—

members, Mr Alan Cameron, was presented as if it represented the views and opinions of the society. This was not the case. The South Australian Society of Aboriculture in no way condones or supports the personal views expressed by Mr Cameron in a number of flyers he recently emailed in relation to the proposed amendments to the significant tree legislation. He chose to act independently, sending out correspondence without the prior approval and contrary to directions of the executive committee. The South Australian Society of Aboriculture is dedicated to promoting greater public tree awareness and improving urban tree management for a better environment. We appreciate the support of many different groups across South Australia and wish to provide our ongoing support and involvement to ensure improvements to the significant tree legislation occur. Please accept my apologies on behalf of all members of the Society for any offence that may have been taken in relation to these flyers.

As I said, there was a lot of information. I have also received a significant amount of correspondence from people who are living in Adelaide’s suburbs. These people are not developers. They have had enormous problems under this act. They have been slugged significant amounts of money because they themselves in most cases planted inappropriate trees which have grown too big and cracked their houses. The issue is not whether or not the tree is healthy but whether it should have been planted there in the first place.

Whether this bill is defeated, withdrawn or whatever here today, those issues will still remain as will, of course, the case of us protecting those century old river red gums that are removed, in many cases inappropriately, by developers. Those situations exist under the current laws and they will continue to remain so. In the almost 12 months that this legislation has been around, there has been significant consultation and there have been significant amendments. I have done my best to try to get the right balance to deal with these conflicting issues. But, if it is not the will of this parliament to deal with that, so be it, but I again make the point that those issues will not go away.

The Hon. D.W. RIDGWAY: I would like to respond to some of the comments made by the Leader of the Government in relation to this bill, and in particular the opposition's request for a copy of the regulations and the proposed exempt trees list when the committee last met. We received the list at the time and the minister read from it, although the information that was given to me at the time of that meeting was that it was not a complete list but an indicative list. So, there may well be some other trees to be put on that list. I thank the minister's staff for making that available, because it gives us a little more clarity.

However, the opposition is of the view that this piece of legislation has become increasingly more cumbersome and more difficult to manage, and that all this possibly could have been done purely by regulation. It is the will of the minister to identify the trees that will be exempt. As the minister mentioned, people who have planted trees—and we always hear of the lemon scented gum that was handed out by some councils to help beautify their particular suburbs—in inappropriate places, surely that is a simple matter that can be handled by regulation. Those types of inappropriate plantings can be removed. An almost bureaucratic nightmare is starting to evolve with this piece of legislation.

We then raised some concerns with the Urban Trees Fund, such as how do you value a tree? At one stage I spoke to the Hon. Mark Parnell about how you value a tree, and he may well want to correct this when he gets a chance to speak. A tree is a structure eight foot high with a couple of holes in it so birds can nest in it. If you take out an old tree that has nesting cavities for birds and you put a structure back up that has cavities in it for birds to nest in, that is what it will cost to replace it. The minister indicated that perhaps a $300 payment might be made to the Urban Trees Fund.

The opposition has a whole range of concerns about the Urban Trees Fund: will councils set them up, will the money be used appropriately and what happens to the Urban Trees Fund? What happens if a bushfire goes through and burns the trees that are planted on a piece of land by a council and funded by the Urban Trees Fund? Will they be replaced? Who will maintain them? We know the cost of labour. These days, all our costs are going up. Is $300 for a tree an appropriate amount of money? The opposition believes that this is a very cumbersome way of dealing with this issue and it does not, in many cases, reflect the true value of a tree.

We have areas in Adelaide with urban infill, and it is probably not appropriate to debate that issue. But, where you have an old dwelling on a large block of land, by removing a large, old tree you can get urban infill that the community might want. Some communities do not want it. Some people who have lived in a particular community all their life would like to grow old there. I can give examples where a very large, old tree has been removed to create 10 or 12 townhouses or units that elderly people of our community can live in. Now, how do you put a value on a tree like that, which provides an opportunity for 10 or a dozen elderly South Australian citizens to live in their own environment and grow old in their own community, bearing in mind that you may have had to cut down a large old river red gum? How do you put a value on that? Certainly it has to be worth a lot more than $300, but this legislation does not address how you value those trees. They are the concerns we have: the make good orders and the access across other people's properties.

I know from discussions we had with the minister's advisers that they believe the make good orders are sensible and reasonable, but when you look at the legislation you see that it gives people access across others people's property. Somebody could cut down a tree, build a shed on the property, sell it, and the new owner would have to pull down the shed and replant the tree. It has become extremely cumbersome and, like the minister, I have had a deal of correspondence from people at both ends of the debate. The people who want to save trees are quite passionate that this is not the right framework to achieve what they are after, and the property development industry has been complaining to us. In the bill's present form the opposition believes that the minister can do most of what they have attempted to achieve purely by regulation, and we do not intend to support the bill.

The Hon. M. PARNELL: I accept that this is a difficult exercise, one of balancing competing interests and priorities. We have significant tree legislation because the balance was never properly struck in the past; it was open slather for chopping down trees in urban areas. The existing regime is flawed in a number of areas and the minister has pointed out some of what one might call the unintended consequences, yet I am not convinced that by making an easier path for the person wanting to chop down the inappropriately located river red gum we do not also potentially lose other important trees through a system that is not sensitive enough to the importance of large trees in the urban environment. We need a new system, but for reasons outlined in my second reading contribution I do not think this is the system.

The minister says that it is not appropriate or possible to provide us with indicative regulations until we know the shape of the bill. I do not accept that. In this situation we are talking about a regime that consists of primary legislation and delegated legislation. It would have been appropriate for the government to provide indicative regulations as part of the package of measures. It may well be that having seen those indicative regulations some of the concerns in the community might have been assuaged, but I am not convinced. For example, one of the indicative regulations the minister has just referred to was that perhaps the list of exemptions might include trees within 3 metres of structures. The problem I have with that is that those structures were probably put in place with no regard for the tree that was there before it. The tree was not a factor in allowing the structure to go in. If we were to have a blanket rule that says that you do not need permission and do not need to pay any money if the tree is within 3 metres of a structure, that is a recipe for the structure always winning, however inappropriate it might have been to put that structure there in the first place. The shed, swimming pool or house always wins.

If we read the decisions of the Environment, Resources and Development Court, where it has had to deal with disputes over significant trees, you will often get very sympathetic words from the judges or commissioners, where they say that a stately tree effectively has been dealt the death of a thousand cuts by the encroachment of development around it. When decisions were made to approve those individual developments, the tree was not taken into account and ultimately the tree becomes unviable in its location as it is in conflict with those buildings. I cannot accept a system that is as unforgiving as one that says that the tree always loses, the building always wins. Philosophically it is the wrong way to go about it. Having accepted that the current system is inadequate and that reform is needed, I have had to think through whether it is my job as a member of the crossbenches to go back to the drawing board and redesign the government's significant tree regime. I do not think it is my job. Many years ago Commissioner Hutchings was engaged to review this, and I made a submission, as did many other South Australians, as to how we thought the system should work, and my submission was not the bill before us. I do not think it is the way to go.

The Hon. David Ridgway referred to a conversation he and I had some time ago about the value of a tree, and he has fairly faithfully recounted it. It was in relation to Tasmanian forests from memory, where they were trying to work out the value of trees. Someone said that, if the environmental value of the tree is that it provides a nesting hollow for three parrots and a possum, you can put a steel pole in the ground and put a few nesting boxes on it, which will cost a few hundred dollars, and that is the value of the tree. Clearly that is nonsense because the trees we are talking about in the urban environment may have habitat value, but it is probably more likely to be the amenity value, the landscape value of the tree. It is difficult to put a price on it.

The feature of this legislation that has most concerned me, when it comes to the money side of things and putting a value on trees, is that if we are trying to cut the arborists out of the equation, and if the value of a tree is to be less than an arborist's report, then we are artificially and unreasonably devaluing the real worth of these significant trees. In trying to find a way forward a number of us, including the Hons Russell Wortley, Michelle Lensink and others, informally on the ERD Committee have talked about whether it would be possible for us to look at this bill and whether a reference to that committee would be appropriate. I am not in a position to speak for the committee, but around the table informally there was some sympathy for the fact that we might be able to do something with this legislation.

If the government is not minded to put such a request in of the Environment, Resources and Development Committee, similar to the Hon. David Ridgway I find myself in the position that I cannot support this legislation. I invite the government to go back to the drawing board and to try again to get the balance right. I will support measures that allow for inappropriately planted trees to be removed. I do not want to stand in the way of that happening. I do not want to do that in a way which puts other vegetation at risk and which does not strike a proper balance between protecting our urban tree heritage and the needs of the development industry.

The Hon. SANDRA KANCK: I began consulting assorted groups before this legislation was even introduced. I have had three or four rounds of consultation with these groups, which include the Conservation Council of South Australia, the South Australian Society of Aboriculturists, the National Trust, Save our Suburbs, the Local Government Aboricultural Group, and the Tea Tree Gully Region Environmental Alliance. They all say that we are better off with the current state of play than with this bill. How is it that, according to the minister, so many groups out there on the ground feel this way yet the minister says they are wrong? Their view is that trees have intrinsic value. The trees, or the representatives of the trees, should not have to prove that they have intrinsic value—yet that is what this bill requires. It ought to be the other way around: those who want to remove trees should have to prove that they lack those values.

I mentioned earlier that of the various groups with whom I have consulted only one of them (Salisbury council) came out in support of the legislation. I put on record other groups that have contacted me and indicated their disapproval of the bill: Mitcham council, Friends of the Little Corella and the Willunga Creeks Project Incorporated. In addition, a number of local government councillors, not representing their council, have indicated their opposition to this bill. The only good things that they have had to say about the bill are the urban trees fund provision and the 'make good' orders. I invite the minister to withdraw this bill and reintroduce a bill that includes just those two things. They would be positives.

Let us look at where we are at present. We have a bill that is six pages long, with 15½ pages of amendments filed at this point, half of which have come from the minister himself. Surely, the minister must recognise that there is something significantly wrong with this bill when we have something like two to three times the number of pages in the bill appearing as amendments. Part of the problem that has faced the government is its unwillingness to provide us with any of the draft regulations.

That has been a factor for the various groups I have mentioned that oppose the bill. When we have gone through the bill clause by clause, and even some of the minister's amendments, they have expressed their great concern that they do not know what it is they are letting themselves in for, when the bill or the amendments say that the detail will be in the regulations. I think the best thing for the minister to do is to completely withdraw this bill, take it right off the Notice Paper because it is so flawed and start again.

The Hon. A. BRESSINGTON: I indicate that I will not be supporting the bill. I will not go into a big spiel about it, but I concur with the comments of the Hons Mark Parnell and Sandra Kanck. It is far too easy for us to negate the value of trees in our communities. As the Hon. Sandra Kanck said, the onus should be on the residents and people who want to remove trees to prove those trees do not have any value. I will not support the bill.

The Hon. G.E. GAGO: It is clear that the government does not have support for this bill. It is disappointing, but it is quite obvious that we do not have support for the bill; we do not have the numbers. Rather than waste the time of the chamber, the government will withdraw the bill from this session of parliament and see whether there is any potential to renegotiate amendments and reconsider its drafting.

Progress reported; committee to sit again.

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