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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-06-16 Daily Xml
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SIGNIFICANT TREES

The Hon. D.G.E. HOOD (15:04): I seek leave to make a brief explanation before asking the Minister for Urban Development and Planning a very timely question, given the earlier discussion, about significant trees legislation.

Leave granted.

The Hon. D.G.E. HOOD: I have recently had contact from a number of constituents regarding problems with so-called significant trees on their own private properties. Constituent No 1, I will call her, from Klemzig had a large tree drop its limbs on her fence twice, which required extensive repairs to the fence. Apparently this constituent's insurance premiums have increased quite substantially as a result of the continuing damage caused by this large tree. She has retained two independent arborists' reports recommending that the tree be removed. However, she has been stonewalled by her local council under the current legislation and refused permission to remove the tree, despite the arborists' reports.

Another constituent from Kensington Gardens who has young children told me that she is afraid to let them play in her yard due to a large river gum that continually drops branches in her own private property. She has replaced two fences that were damaged by the tree in recent times. However, apparently this type of gum tree naturally drops its branches from time to time, and it is considered a healthy tree. She has obtained the signatures of all of her neighbours calling for the removal of the tree but, again, her local council has refused her permission to do so.

To the government's credit, I think that it brought legislation to this place some time ago and admitted that the current system regarding the removal of large trees is somewhat broken and requires repair. However, unfortunately, the bill was allowed to lapse at the end of the last session. My questions to the minister are:

1. Why did the government allow this important bill to lapse and why has it not reinstated it at this point?

2. Does the government still stand behind the legislation and, if so, will it reintroduce the legislation? If it does, it will enjoy the support of Family First.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (15:06): Of course the government is not against this legislation. The reason why we were unable to proceed, if my memory serves me correctly, was that on at least one occasion the business of the government was taken out of its hands. We moved to bring on the debate, but I did not have the numbers. However, it was quite clear that members of the opposition and a majority of other members were going to support it. It sat here on the Notice Paper, with the government trying to debate it for many weeks. The fact is that members of the opposition refused to deal with it. I told them at the time that they would regret it and, of course, that is exactly what has happened.

Does the significant trees legislation need to be changed? I believe that it does. However, let me say that that particular change to the Development Act was introduced by the Hon. Diana Laidlaw in this place in the late 1990s and that legislation was supported by the then Labor opposition. I believe that that legislation as it was introduced essentially dealt with the main problems that we were then facing with respect to significant trees.

The legislation was aimed at the older river red gum trees, in particular, in the eastern suburbs, in an attempt to protect them. Part of that legislation stated that, to be declared significant, a tree not only had to be of a certain size (that is, two metres in diameter a metre above the ground) but it also had to meet a number of other conditions, one of which was to contribute to the biodiversity of the area. I think that most of us when we debated that legislation at the time thought that it would specifically be aimed at protecting indigenous trees like those old river red gums, but it should not necessarily be used for introduced species.

What has happened with that legislation after it was introduced in the late 1990s is that a number of councils have made their own interpretation of it. Incidentally, whenever these issues go to the Environment, Resources and Development Court, I think the court's interpretation has been the correct one and it has reflected the original will of this parliament. However, I suspect that it would be the case with a number of councils (and I think this came out in the cases that the Hon. Dennis Hood mentioned) that if they ever went to the ERD Court the court would take the position that this parliament originally intended with the legislation that was introduced in the late 1990s.

Unfortunately, what has happened is that many councils have interpreted this legislation in ways that I do not believe was the original intention, and that was one of the reasons why I sought to amend it. However, I did make the comment during the debate (and I repeat it now) that, in relation to trees, it is very difficult to get legislation that will fit every situation. Clearly, there are rapidly growing trees that reach a large size very quickly, and there are trees that are very slow growing and some of them never reach the size that would make them significant trees even though they may have significance in other respects. In order to try to deal with that, one needs to complicate the legislation and make it more complex to try to deal with all the issues involved.

As well as significant trees, the Hon. Mr Wade asked about the Local Government Act which deals with trees that are not significant. As he correctly pointed out, there are many issues in relation to that matter, as well. Even if one can get the agreement of a council that a tree might be removed, that is different from compelling a neighbour to remove a tree that may be creating difficulties for others. That is something the legislation I introduced was not attempting to deal with because that is an extremely complicated issue to deal with.

In relation to significant trees, if it is the will of this parliament to proceed I would be happy to try to help improve the law. Given that one will never get perfect legislation to deal with trees, certainly we can attempt to clarify it. The legislation I introduced tried to deal with the range of issues that we might have. Other approaches are taken in other parts of the world. Obviously, the age of a tree could easily be a factor but, if one tries to introduce that into legislation, it is an extremely complicated thing to do.

Generally, I believe there is a difference in principle, and it goes back to the original legislation moved in this parliament in the late 1990s. Trees such as some of the river red gums in the eastern suburbs that have been there for 100 years or more would need a different degree of protection than a rapidly growing tree planted in one's own yard that 20 years later was starting to crack the house. Clearly, the law needs to deal with those two types of trees differently, but it is not easy to frame the legislation. If it is now the wish of this parliament to support that legislation, I am happy to bring it back to the parliament.

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