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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-09-23 Daily Xml
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DEVELOPMENT (REGULATED TREES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 15 July 2009. Page 2888.)

The Hon. D.W. RIDGWAY (Leader of the Opposition) (20:26): I rise on behalf of the opposition to speak to the Hon. Mr Hood's amendment to the Development Act and, in particular, regulated trees. Members will be aware that this same bill lapsed when parliament was prorogued a couple of years ago. The last time it was debated was in September 2007 when we reached the committee stage. It was a long and protracted bill in an attempt by the government to come up with a simpler more streamlined approach to dealing with the perennial problem of large trees in our suburbs and, in particular, difficult and significant trees.

At that time the opposition indicated to the Leader of the Government and the minister that, at that stage, we were not prepared to support the bill. While we acknowledged that we had eight members in this chamber and the government seven, as well as six crossbench members, if the government was able to get the support of enough of the crossbenchers to achieve its legislative reform we would not make a big song and dance about it—it would be a bit of government legislation which we did not necessarily support but which we did not necessarily oppose.

On a number of occasions in this place since that time the minister has claimed that we opposed it because we did not support it. I keep reminding the minister that we had only eight members and that, with the six crossbench members and the government members, he had the numbers if he was able to convince them that it was a sensible piece of legislation. There are a number of concerns, but one of our fundamental concerns is that a big chunk of this legislation is left to regulation.

At the time the minister was not prepared to show us the regulations. I know that the LGA wishes to see a copy of the regulations, and I note that we have a representative of the LGA in the gallery tonight. It should be noted also that we debated the planning reforms, and, in particular, the implementation of a residential code. Again we asked to see some draft regulations, because while the residential code primarily is an instrument set up by amendment to the act the actual detail is in the regulations.

The government was prepared to show us the draft, and I think we had draft 10 or 11 when it finally got into this chamber. The government has realised that the way to get some of this more difficult legislation through is to give us a look at the regulations. As I mentioned, at that time we did not support the bill or the regulations. Sadly, the Local Government Association did not trust the government and wanted to see a copy of the regulations at that point, but they were not forthcoming and, sadly, they are still not forthcoming.

I think that some of the amendments proposed by the government address some of the minor concerns of the LGA, but as late as 17 September (this month) I was advised that the LGA would still like an amendment that would require the Department of Planning and Local Government to consult councils on the regulations accompanying this bill, and to our knowledge that has not been forthcoming. I think they have had informal discussions in the minister's office about the possibility of having a committee within the Department of Planning and Local Government comprised of representatives from local councils who could help to formulate the regulations with respect to trees and more pertinent issues.

The LGA also indicated to the minister that it would be satisfied with a dot point overview of the proposed regulations, perhaps presented during this debate. So, I am waiting. As I have indicated, the opposition has not changed its position. We do not support this legislation at this point, but if the minister were to table some dot point regulations that the Local Government Association was happy with, we might be prepared to consider supporting it. However, we have only eight members. There are 22 of us in this chamber, including you, Mr President. So, there are 13 other members on the floor of the Legislative Council and, if the Hon. Mr Hood gets enough support, he will be able to pass his legislation.

I do not want to prolong the debate, because members are fully aware of the opposition's position on this, but things such as the urban trees fund and the make good orders have been particular concerns of ours. The urban trees fund is where a person wishing to remove a significant tree has to pay into a fund to do so.

I will give an example of what I think is one of the sticking points for me (and I have often talked about it in previous debates). An opposition staff member bought a property that had a tree in the backyard. They may have been a bit excited about the property and did not see that the tree was on their land. When they demolished the old house to build a new one and cleared the property, they realised that it was on their land. They applied to try to get rid of it and had a long battle with the local council. In the end, they did not remove it.

While the tree is still a concern on some stormy nights, because it is large (it is a red gum about 150 years old), they are quite delighted, because it gives a lot of shade and protection to their home. They have a pool and quite a nice backyard, I think. So, on the one hand, they were very happy to get rid of it but, on reflection, they are now quite pleased that it provides quite a lot of shelter. That is an example of where the system frustrated a landowner but, in the end, they are quite happy that they did not cut down that tree.

The problem with the urban trees fund is: how do you value a tree? I remember having an informal discussion with the Hon. Mark Parnell. I am not sure where he got this from, but he talked about a tree that was a habitat for some birds. I think he said that the tree was 20 metres high and had three or four birds' nests in it, and the cost to build a steel structure with a bit of shading over it and three or four bird nests in it was roughly the value of a tree. I struggle with how you can—

The Hon. M. Parnell: You quoted me accurately; but they were not my figures.

The Hon. D.W. RIDGWAY: No, I am not saying that it was the Hon. Mark Parnell's figures, but we had a discussion (it may have been in the ERD Committee) about how you arrive at the value of a tree, because we all put a different value on a tree. I am sure that the Hon. Mark Parnell and a lot of his party colleagues may value trees significantly higher than do other members in this place—or maybe not. So, how do you arrive at a value that is reasonable for protection, but then also to pay into a fund, and where does the fund go and how is it administered? It seems to be a particularly cumbersome mechanism to try to achieve an outcome.

The other issue that we struggled with was the make good orders. If someone cuts down a tree—like the staff member about whom I spoke earlier who cut down the 150 year old red gum tree in their backyard and built their pool—and then the local authorities decide, 'This person has done the wrong thing; we are going to impose a make good order on them,' how on earth do you re-establish a 150 year old tree? What is the magnitude of a make good order?

We can all understand that, if someone pulls up or destroys a tree that is a few years old, they can replant something of similar size and nature. I am not quite sure how you achieve a make good order when you are talking about large trees. Clearly, you cannot replace them or transplant them back into place. With respect to the value of trees, I have always been somewhat of a greenie when it comes to trees, and large trees in particular, and I remember the disappointment—the Hon. Mark Parnell might laugh, but I remember the—

Members interjecting:

The Hon. D.W. RIDGWAY: Well, you all might be laughing. I can remember the disappointment. You may laugh but I can recall that when I was about 19 or 20 we burnt a wheat stubble and we thought we had put out all the fires, as you do in March and April. Unfortunately, one of the best gum trees in the paddock had a little bit of leaf mulch under it and there was a strong north wind that night. I recall that I had been out to a Rural Youth meeting and on my way home at about 10.30 that night I saw that the tree was alight, and there was no possible way to put it out. It fell down—

The Hon. A. Bressington interjecting:

The Hon. D.W. RIDGWAY: It was a bit reckless, in hindsight. The next morning you get up and there is a tree that is probably 250 or 300 years old lying on the ground. It was healthy, and it was full of possums and birds. I recall there was a snake that had been caught in the roots; it had tried to get out from the fire and was dead on the ground. I looked at it and thought, 'That was a careless act,' and I felt quite bad about it, as did my cousins and neighbours on adjoining properties. It would not matter how much money you paid because you could not replace what was lost that night.

The PRESIDENT: You should have had the dog tied up to it; he would have put it out.

Members interjecting:

The Hon. D.W. RIDGWAY: You might all laugh. The people who are laughing, and I do not want to point it out, epitomise the lack of respect a lot of people have for the farming community and their environmental concerns. People can laugh and people can criticise. To this day, 30 years later, I feel guilty that I did not make sure that fire was out and that the tree is gone. Once it was gone, it was gone forever and I could not replace it. That is why I have a fundamental belief—

The Hon. P. Holloway interjecting:

The Hon. D.W. RIDGWAY: The Leader of the Government is laughing now. He thinks it is a joke that I burnt down the tree. It is not a joke.

Members interjecting:

The Hon. D.W. RIDGWAY: I am a bit ashamed and saddened that members are ridiculing me because I am disappointed that I helped burn down a tree accidentally. It was 300 years old and probably the home of countless dozens of animals.

That is why I am concerned about this legislation. I do not think it actually addresses the problem that we have, and it is cumbersome. I do not know how you can arrive at the value of a tree. I do not know how make-good orders can be made to work. Our party feels the same, so I indicate that we are prepared to listen to some of the amendments. I think the Hon. John Darley's amendment that gives concessions to pensioners is a sensible one and, certainly, the opposition will support that in the event that there is sufficient support for this legislation. However, I indicate that the opposition is unlikely to support this bill.

The Hon. M. PARNELL (20:37): This is now the third time we have seen this bill and the third time I have spoken to it. The first time I made quite a lengthy contribution, going through all the different elements of the bill. The second time I was briefer, and I think this will be the briefest of the lot.

At its heart, the problem with this bill is that it starts on the premise that it is too difficult and too expensive to chop down trees and that therefore we need to make it easier. If, on the other hand, the premise of the bill was that not enough or not the right sorts of trees were being protected, we would have got a different bill. But it starts from the wrong premise and, therefore, it comes up with the wrong result.

One issue I have discussed already with the member who introduced this bill is one of my fundamental concerns, and that is the level of assessment that will be provided to assist in determining applications to remove, whether it is significant or regulated, trees. Under this bill (even though the Hon. Dennis Hood is bringing it to us now, this was the government's position), unless special circumstances apply, the local council planning officer is not allowed to ask for any technical or expert information about the state of a tree to justify the claim that has been made that it should be removed.

For example, if someone went along to the council and said, 'This tree has to go because it is diseased,' what would normally happen (under the present system) is that a diligent council officer would say, 'Give me some proof,' and that would usually be an arborist or someone who understands trees. You would get a report and, if that vindicated the fact that it was diseased and possibly likely to fall over, you would probably get your approval.

We know that it costs money and we know that that is the driving force behind this bill—or it was—from the government's point of view; saving those few hundred dollars for technical reports. However, put yourself in the position of the council planning officer, who is not allowed to ask for any technical information or any expert report. They have to look at a sheet of paper which basically says, 'Tree at number 37.' They want to chop it down because they say it is diseased and dangerous and that it drops limbs. They can say whatever they want and the officer is not allowed to get a second opinion. It may be that a very diligent planning officer would go and inspect it. Most do not, but let us say that they did: would a planning officer necessarily know a dangerous tree from a safe tree just by looking at it? Probably not; probably they would not have any idea.

It seems to me, that is just one example of where I think this legislation makes it unnecessarily easy to chop down these trees and removes the ability of our planning authorities to make a proper assessment. However, having said that, I know that, certainly as far as the honourable member is concerned, and certainly the minister when it was his bill, they made out the very good point that inappropriate trees have been planted, for example, people planting lemon-scented gums that they were given as a birthday present or a Mother's Day present from a well-meaning child. They planted it because they thought that was the right thing to do and, within a year or two, it is already looking like causing damage. If you do not get onto it straight away then it can become a significant tree and there can be some rigmarole in order to remove it.

This bill takes that situation as the norm and applies a lax standard to that situation which can then be used for situations where the trees are not necessarily causing a problem. I think it is the wrong tool to use. If the starting point was driven more by a question such as, 'How do we get Eucalyptus microcarpa properly protected in the significant tree legislation?' I think we would have had a different outcome.

I also agree with the Hon. David Ridgway when he points out that almost all of the useful detail as to how these laws will apply is to be contained in regulations that we have not yet seen. The honourable member who is moving this bill as a non-government member of this council does not have any capacity to write regulations. Even if he were to ask parliamentary counsel, I am not sure whether it is part of their brief to let a backbencher or a cross-bench member write regulations, so we have no idea what the coverage of this legislation will be.

The government, as I understand it, is supporting this bill because it was originally theirs and the minister may provide us with some draft regulations that might settle some of our concerns. However, whilst at present all we have before us is this bill and no regulations, the Greens cannot support it.

The Hon. DAVID WINDERLICH (20:43): I will not be supporting the bill. I would like to acknowledge the contribution of the Hon. David Ridgway, who gave us some of the emotion of trees. I understand there are people called tree doctors who can help him deal with the unresolved guilt. However, I did genuinely respect what he was saying. In fact, I thought it was verging on the poetic. It made me think of a very short poem by Ogden Nash as follows:

I think that I shall never see

A billboard lovely as a tree.

Perhaps, unless the billboards fall,

I'll never see a tree at all.

I think that kind of emotion is important and at the heart of this question. Really, what it comes down to is this: do we think trees are valuable? I think there are many reasons, emotional reasons—as we have heard outlined—biodiversity reasons, microclimate effects in the cooling of the city and the visual amenity and so forth. Imagine Adelaide without trees. I think they clearly are valuable. The question is: what role will this legislation play in balancing the protection of trees and the protection of people? I think that is what it comes down to.

There is no doubt that removal can be necessary. There is no doubt that some trees are dangerous and that their removal can be expensive. I think we do have a problem where there is a situation where the public or community benefit of a significant tree of some size is paid for at a private cost to individuals who must maintain it or manage it. I think that is a problem, and I do not think this legislation will resolve the problem other than just to raze the tree.

It also raises some interesting questions about risk. We have different levels here. If a branch is about to fall on my house, I think I am entitled to take steps to prevent that happening. If a branch almost fell on me out in the backyard, I think that is quite a different argument, and to say that that is an argument for the removal of trees uncovers some very interesting arguments about risk.

My 16 year old daughter is going to learn to drive. If she almost runs me over in the driveway, which is probably reasonably likely, I am not going to crush the car. I am just going to say 'Phew! Well, that's a relief! Didn't run me over.' There are interesting attitudes here about what are legitimate risks which we accept in all sorts of contexts and do not resort to drastic solutions—we just say, 'Well, something almost happened, and thank goodness it didn't'—and what are risks that we are reacting to almost irrationally, like the Jaws effect of not going swimming because there is a shark in the water.

I think that some of these issues around how we react to our natural environment, as opposed to the way in which we react to the other sorts of threats, such as those posed by traffic, are quite revealing about what we value in life and what we try to manage.

As I said, there is a need to strike a balance but I do not think this bill is a serious attempt to strike a balance. It has identical problems which were pointed out in detail, and the Hon. Mark Parnell just outlined them again. Do we still have this arbitrary measure of the two metre girth which does not take into account that many native trees do not reach that measurement?

The Hon. Mark Parnell pointed out that this bill in fact blinds councils. They cannot go out and get the information they need, and there is a balance there too because there is a great temptation on the part of councils to forever get reports and hold things up and avoid making decisions. That happens, so there is a need to balance that. The Hon. David Ridgway pointed out the lack of regulations and how important regulations are going to be to make this work and, in their absence, we cannot really make a sensible decision about this.

The other key factor in terms of whether this legislation is workable is to look at the context. The context of this legislation is that we are in an environment where we say that we value biodiversity and vegetation and the garden setting and all that sort of thing, but every trend is moving against that. Backyards are disappearing and, with them, trees. The metropolitan boundary is expanding, so that will remove a large number of trees out on the fringes.

We have the effects of drought and climate change, and we have an aggressive 'develop at all costs' mentality which I think is exemplified not only in terms of the large development corporations and the large development projects but also on quite small domestic projects where everything inconvenient is to be swept aside, razed to the ground. I think there is also a fundamental impatience with nature and anything that does not fit neatly into our plans for how we want where we live to look and whether we want to build this particular extension or that particular extension.

In that climate, there is a growing impatience with the untidiness of nature such as is often provided by trees. The overall picture is that we say trees are valuable and biodiversity is valuable but there are some very powerful trends that make it very clear that trees are in danger—our significant trees and our trees of any size in particular are in danger.

This legislation creates too many loopholes that would mean that all those forces that want to deal with trees as an inconvenience will do so. I think the cumulative effect of this will probably actually outweigh the effects of drought or climate change—a sustained go with a few thousand chainsaws and bulldozers will actually make a huge hole in the tree population of Adelaide.

The Hon. P. Holloway: They are cutting them down when they get near two metres. They cut them down before they become significant—that is what is happening now.

The Hon. DAVID WINDERLICH: Well, that happens too and I think we will see both happen. The flaws in this legislation were pointed out in great detail by councils and by various interest groups, I think, two years ago when this was first discussed. This current bill has not responded to any of those criticisms. Therefore, I do not think it is a serious attempt to strike this balance, and I will not be supporting it.

The Hon. D.G.E. HOOD (20:50): I thank members for their contribution. I think this is one of those bills that people have very strong feelings about. I understand that and I share those feelings. I would like to sum up very briefly. The first thing I want to say to members regarding this bill is that it was, of course, a government bill initially and it had Family First's support, but it lapsed, as we know. I have reintroduced it for a number of reasons. I certainly do not want to see as a result of this bill passing this place—and I believe it will on my simple count of the numbers—the wholesale removal of trees from Adelaide's landscape. I do not believe that will be the case. In fact, I am quite confident that that will not be the case.

I think we are living in a situation now where the tree legislation in this state is nowhere near as good as it should be, and it really has created huge angst. I have had literally—I would not be able to put a number on it—at least 100, if not more, contacts with constituents over this issue as I have done some media on it. There is a lot of feeling and a lot of angst in the community from people who feel they are in a very difficult situation; for instance, people who have spent many thousands of dollars trying to remove trees for reasons which, certainly to me, appear to be legitimate, but they are not able to because of what they perceive as red tape. This bill should fix those sorts of situations. That is what it is targeted at, as best as I can tell.

I would like to touch on a couple of points that have been made by members. I thought the Hon. Mr Winderlich gave a thoughtful contribution, but one point on which I would disagree is the example he gave of a car potentially running down the driveway or a tree potentially falling on one of his children or himself—I think he said. He said that you would be grateful that it did not happen and move on. I agree with him on that part, but I think also you would then take steps to make sure it could not happen again in the future. I think that is what this bill takes small steps towards.

I should acknowledge that this bill is not perfect. I do not believe it is perfect at all. In fact, I think the Hon. Mr Ridgway outlined problems with the bill, and I actually agree with most of them. There are certainly issues with this bill. The Hon. Mr Parnell mentioned one of them, and that is that much of the guts of this bill, if you like, or the real detail of the bill, will be formulated in the regulations. Of course, that is something that we will simply have to trust the government to do to the best of its ability.

I believe there is goodwill on this bill. I see no reason why the government would not do that. I think it makes good provisions. They probably are not optimal but I think, again, they are better than what we have now. That is why I think this bill is worth pursuing. Basically doing nothing, I think, is unacceptable. My view is that we should pass this bill in order to improve—albeit marginally, some might argue—on a situation that, at the moment, is unacceptable.

The Hon. Mr Parnell gave what I thought was a well thought out contribution. I would like to pick up on one point he made with which I do not agree. It was the point about someone approaching their local council and saying, 'I want to get rid of this tree because it is diseased,' or something along those lines. I think his argument was that it is difficult for a council to assess, in those situations, what they should actually do. I think that is a fair point but, under this bill—should it pass—that situation would apply only to regulated trees, not to significant trees. So, the situation with significant trees is largely unchanged. The situation with regulated trees would be changed. So, essentially, it would be easier to act on regulated trees, but there would still be substantial protection for significant trees.

I note also that this bill, in a general sense, has broad support from the LGA, subject to regulation, which I understand the minister will address. I have a fax here—and I am sure other members also received a copy of the fax—indicating the LGA's support for the bill. I would also like to say that Family First will be supporting the sensible amendment which will be moved by the Hon. Mr Darley in due course.

Bill read a second time.

In committee.

The Hon. P. HOLLOWAY: Mr Chairman, I wonder, with the indulgence of the committee, whether members would accept my having an adviser from the Department of Planning and Local Government. I know it is the Hon. Mr Hood's bill, but given that, originally, it was a government bill, if there are technical questions, it might assist the committee if I can provide answers to some of those questions with the help of the adviser. I know that it is an unusual procedure for a private member's bill, but I am happy to do that on this occasion if that is the wish of the committee.

The Hon. D.W. RIDGWAY: Is it the minister's view that, if any member other than a government member reintroduces a government bill that has lapsed, dropped off because parliament has been prorogued or defeated, a government adviser will be available to assist during subsequent debate on such a bill?

The Hon. P. HOLLOWAY: I am not suggesting that this sets any precedent. I am suggesting that it would make common sense on this particular occasion, but obviously it is up to the committee. There are unusual circumstances with this bill. It was not debated through the committee stage originally, so some of the technical questions, amendments and things were not discussed. It is in the hands of the committee. If members do not want that, so be it, but I put that as an offer, I think a sensible offer, to assist the discussion on the bill.

The Hon. D.W. RIDGWAY: The minister is proposing that, in relation to an amendment or any questions that we might address to the Hon. Mr Hood on his bill or the Hon. Mr Darley in relation to his amendments, there is the potential that any technicalities will be answered by the minister, with advice provided by the government adviser. I understand what the Leader of the Government is trying to do, but I think it sets a precedent with any piece of legislation, if the government chooses to have an adviser in the chamber—and next year we hope it will be a different government. I make it very clear that, if we are going to make a significant change to what has been the practice in the past, all members are aware of it.

The CHAIRMAN: I do not want this to set a precedent where all private members who introduce bills have advisers sitting next to them, but all the amendments, except for two which are in the name of the Hon. Mr Darley, are government amendments. I do not know whether the Hon. Mr Darley has requested any assistance to convince the committee to pass his amendments. He says no. The minister is entitled to have the advice of the adviser in respect of the government amendments.

The Hon. S.G. Wade interjecting:

The CHAIRMAN: The minister has the other amendments on the table. To answer questions that might be raised in committee, the minister can ask for the adviser to assist. That is not having the Hon. Mr Hood asking the adviser to assist, because the amendments are in the name of the minister.

The Hon. S.G. WADE: Does that mean that another member who had carriage of a private member's bill would be able to have an adviser present?

The CHAIRMAN: No. I am saying that the minister is entitled to use the adviser, without the approval of the committee, on the government amendments. The Hon. Mr Ridgway's argument is that the Hon. Mr Hood or the Hon. Mr Darley do not use an adviser. If they do, they set a precedent, and I tend to agree with that; that is, a precedent would be set for other members, when dealing with their bills at the committee stage, to argue that they should have the use of an adviser. Except for two, these amendments are in the name of the minister. The minister is entitled to have an adviser in the committee.

The Hon. D.W. RIDGWAY: In the 7½ years, nearly eight years, that I have been here, I do not recall in relation to any other private member's bill the minister having an adviser. We have had close to 100 private members' bills. I do not recall—I stand to be corrected—that the minister has had advisers sitting next to him.

The Hon. P. HOLLOWAY: I do not think it has ever been done before, but the difference here is that this bill was originally drafted on the government's instructions. The advisers working on it were public servants of the government and, obviously, they have an intimate knowledge of the bill which they can share with the committee, if the committee so wishes. Normally, with most private members' bills, if they are drafted on the instructions of members in this place, members will be more familiar with the bill; there will not necessarily be any advice from outside in relation to it.

It is simply an offer I make. Because of the background of this bill and because a lot of work has been done on it by people within my department, I am happy to answer any questions raised or provide further information with the assistance of the advisers, if the committee so wishes—because I think that would make better legislation. I do not see its setting any precedent. It is an unusual set of circumstances, but it is entirely up to the committee.

The CHAIRMAN: If questions are directed to the minister by members of the committee, the minister is entitled to seek advice from the adviser in the committee. In relation to amendments moved by the minister, the minister is entitled to do that. I suggest that we proceed to move the amendments and follow the procedure that the minister seeks advice when he is questioned or in regard to his amendments; so we proceed along those lines.

I understand the Hon. Mr Darley is quite happy to argue his own amendments. The Hon. Mr Hood does not have any amendments to the bill. If other members have serious questions about it and the Hon. Mr Hood has any difficulty answering them, they might direct those questions to the minister. Let us see how we go without setting a precedent because I am reluctant to do that.

Clause 1.

The Hon. A. BRESSINGTON: It is my understanding that this bill was re-introduced for the reasons that the Hon. Dennis Hood mentioned. Like him, I have received many emails, letters and photographs of trees that have been causing problems to families with small children. Unlike the Hon. David Winderlich, who used the analogy of his daughter driving a car, you would not crush the car but you would certainly try to instruct your daughter not to make the same mistake again. It is very difficult with a tree.

I have a similar problem with a huge pepper tree at Shay Louise House at DrugBeat. It is a beautiful tree and no-one wants to cut it down, but it is causing major concern for neighbours on three sides of Shay Louise House because of big branches dropping—and nothing can be done about it because it is a significant tree. Getting council approval to trim those branches so that they are not a risk to the children in the yards next door is a concern for not only us but also our neighbours.

We need to be practical about this. I do not see that there is a motivation to mow down trees for no particular reason. The Hon. David Winderlich spoke about disappearing backyards. Guess what? It is happening. We have backyards that are too small to plant trees in. It may be a little strange in these days of wanting to preserve as much as we can, but I figure that if you own your block of land and build a house, and there is a tree there that you did not believe was going to be a problem at the beginning but it turns out to be one, because it is your plot you should be able to make that as safe and as comfortable for your family as you need it to be.

I think that is the guts of this bill. It is about safety and it is about risk management—and both sides of government, both parties, are big on risk management. If it does not apply for normal householders to monitor and manage their own plot of dirt, we really have a bit of a problem. I support this bill, and I support the Hon. John Darley's amendments.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. P. HOLLOWAY: I move:

Page 3, line 3—Delete 'within a class of trees' and substitute:

, or a tree within a class of trees,

There was a series of amendments here, and members who were around at the time may recall that these amendments are the same as those that were on file in my name two or three years ago, when we first dealt with this bill. They came about as a result of significant consultation in relation to the bill with the Local Government Association, in particular, but also with a number of other people. This first amendment deletes the clause 'within a class of trees' and substitutes 'or a tree within a class of trees'.

The bill, via the definition of 'development', enables the regulations to prescribe the class of trees that are deemed to be 'regulated trees'. The regulations currently refer to trees with a two metre circumference, as per the existing regulations. I note that the original tree controls refer to trees with a 2.5 metre circumference. The bill also enables the regulations to add or exempt prescribed classes of trees.

This amendment will enable the regulations to add or exempt single trees; thus, it merely provides for the full range of options that may need to be considered in the future. This amendment provides the option for the regulations to specify a specific tree as being a regulated tree, even though the whole species does not warrant listing. This amendment flows on into the other amendments.

In other words, the Hon. Mr Parnell talked about lemon-scented gums, and so on, that had been planted in many backyards. Trees of that type are very fast-growing trees that are native to the Eastern States, and they have created some problems because people have planted them inappropriately and they reach that two metre circumference fairly quickly.

Whereas one might want to define a class of trees to which the provisions of this bill should or should not apply, there will be occasions when one particular example of that tree may be regulated because of the circumstances in which it is located, for example. This amendment simply allows that extra degree of flexibility in relation to the bill. It is a relatively minor amendment but, I think, an important one. Again, I make the point that it came out of some discussions when this bill was originally introduced.

The Hon. D.W. RIDGWAY: I indicate that the opposition is prepared to support the amendment. It is interesting to note that the minister said that it came out of some discussions and consultation. I think I made the point two years ago when we were debating the bill that the minister has at his disposal the whole of Planning SA and a number of advisers. However, time and again, with government legislation (although this is now the Hon. Mr Hood's bill, and we know the circumstances in which became his bill), we have seen that, after months and months of consultation and hundreds of thousands of dollars in salaries (I believe his adviser at the time, Mr Vanco, was intimately involved in it, and I think today he is on a very nice salary and buried deep within the department somewhere), we did not get this in the bill when we first saw it.

I think it is a sad indictment on the leadership the minister provides that we must have these amendments, which are reasonably sensible amendments, and that we have to go through this whole process before we get them. The minister needs to have a good, long, hard look at how he progresses his legislation through his department.

The Hon. P. HOLLOWAY: I do need to answer that point about legislation in relation to significant trees. As I have said on a number of occasions, trees are very difficult things to regulate, because they come in all shapes and sizes. You can have very old trees that are small, very large trees that are young, some trees that are diseased and trees that are effectively weeds—and the situations in which they can fulfil these different roles can vary. For example, trees and plants that are highly valued in one location may become weeds in another area.

One only has to look at some of the melaleuca plants that have taken over the Everglades in the United States, for example, to see that. Conversely, we have a number of trees in the Adelaide Hills, for example, that run rampant in the high rainfall areas but may not pose such a problem in a lower rainfall environment.

So, there are many, many different factors, and that is why it is hard to develop legislation that covers all of the situations. The more one tries to make this legislation cover all the various situations that might arise, obviously the more complex it becomes. So, there is a trade-off, ultimately, between how complex the legislation should be and how practical it can be if one is dealing with all the possibilities that can happen in trying to deal intelligently with trees.

In relation to points made by the Leader of the Opposition, this government introduced the bill. Originally, a working group was established by one of my parliamentary colleagues, the now minister for employment, when he was a parliamentary secretary, and the Local Government Association. A significant amount of work was put into that. A bill was developed, circulated and commented on. Then, as it came into this parliament, other suggestions were made. These amendments all came out of that. All the amendments I am moving here are essentially those which were tabled two years ago and which would have been incorporated into the government's bill at the time.

To suggest that one can develop a piece of legislation and have it perfect first time is a nonsense. Perhaps the Leader of the Opposition is perfect, and he might be able to do those sort of things with legislation. However, I would suggest that, in such a complex area like this, that is not the case. I do not think making those sort of comments serves any real purpose.

The Hon. M. PARNELL: I will ask the minister a question, and I guess the minister will determine whether he needs to take advice. My question relates to clause 4, which we are on, but I will not repeat it in relation to clause 5 or the minster's proposed new clauses 5A or 5B. It is the one question, but it starts at clause 4.

The regime here is that significant trees come to be significant by one of two routes—no pun intended in terms of roots; hopefully, they will have more than two roots. One is that they come through regulations; the other is they come in through the development plan. My question, in particular, is in relation to the development plan. Clause 5, which we will get to next, sets out the criteria that need to be met for a development plan to be able to list a tree. Proposed new clauses 5A and 5B provide some of the mechanics of who needs to be consulted before trees are declared to be significant by virtue of insertion into a development plan.

So, what we are talking about is that local planning schemes will have lists in them of significant trees. There are clearly resource implications for local councils to audit their region and list the trees they believe should be listed that might not otherwise be picked up by regulation. However, the minister also has the power, using ministerial development plan amendments, to incorporate significant trees. Does the government have the intention, either as a one-off exercise or as a rolling exercise, to introduce ministerial development plan amendments to incorporate significant trees into the planning scheme and thereby obtain the level of protection that this bill would afford?

The Hon. P. HOLLOWAY: It is really the government's intention, as has happened in the past, that the significant tree legislation would essentially be administered by local government. That is the intention. It is possible, obviously, if these amendments are changed, that there could be a ministerial development plan, but it was certainly was not my intention go down that route. Rather, the option here is that it would specifically apply to councils such as Mitcham, for example.

There has been long-standing debate in this significant tree area in relation to the grey box tree. I am referring to trees that cannot effectively be addressed by the existing significant tree legislation because they are basically fully grown and do not reach the size requirements, although often they have multiple trunks. Of course, the grey box is an indigenous tree, and quite distinctive of parts of the Mitcham Hills and particularly in the higher rainfall areas, where the closely related species is the stringy bark, which is a much larger tree. In those areas with a slightly lower rainfall, you do have these stands of grey box. Councils have tried to protect them in various ways, which have not been particularly effective. In moving the amendments and through clause 5, it will enable better protection to be given to those types of tree. That is the sort of situation that we had in mind when that clause was originally introduced.

The Hon. M. PARNELL: I thank the minister for his answer. I note also that he mentioned the City of Mitcham. Not that long ago we incorporated the Hills suburb of Mitcham into the Native Vegetation Act; so the microcarpa had some level of protection that it did not have before, or at least we clarified that protection. I can see that if we also included those trees within this regime they would be even better protected.

Coming back to my theme of two avenues by which trees can be listed as significant, does the minister expect that most significant trees will be caught within the net by virtue of regulations, or does he expect that most will be caught because councils do audits of trees in their local area and list them individually in the development plan?

The Hon. P. HOLLOWAY: Perhaps I can go back to the original act and the reason it was introduced. The amendments to the Development Act that cover significant trees were introduced by the Hon. Diana Laidlaw back in the late 1990s or early 2000. Essentially they were dealing with a situation that existed, particularly in the eastern suburbs, where there are large river red gums, in some cases many hundreds of years old, and it was really the outrage at some of those trees being cleared that led to this particular bill.

The definition of the significant tree, apart from its size, which was an obvious parameter, required that that tree should contribute to the biodiversity of the region. I believe that was understood at the time to distinguish between trees such as pine trees—perhaps radiata pines and others—which were not indigenous and not an important and established part of the biodiversity of the area. When this act has been applied in cases where it has gone to the Environment, Resources and Development Court, I believe that the court has essentially interpreted the act in that way, and it is appropriate that it should do so.

To get back to the honourable member's question, what we are trying to do here, I think, is to deal with those trees, such as the river red gums, South Australian blue gums and others that are indigenous to the area. It is one thing to give them special protection because of their age—obviously, if a tree is several hundred years old it cannot be easily replaced and is clearly in a different situation than, say, one of the fast growing gums, such as the lemon scented gum, which someone has planted in their yard and may be only 20 years old but is already of a significant size. Essentially, what we are trying to do in the refinement of the bill is to distinguish between those two cases.

What you want from the process, I guess, is the significant trees being those particularly old trees, the indigenous species and, obviously, the larger species, because they are going to be more important, and clearly the protection that they are given, the process they are given, needs to be much more complex, much more detailed and much more stringent than for the trees that can be readily replaced because they are not as old, they are not indigenous to the area and they do not contribute so much to the biodiversity of the area, and given the fact that they are not as old they are more likely to be causing problems to houses and drains and those sorts of things because in many cases they have been planted after a house is built.

That is somewhat different, of course, to having an existing significant tree that has been there for hundreds of years, and someone comes in who wants to build there and their building may disturb the roots of the trees and so on. Conceptually, there is a significant difference between trees in those two situations, and that is essentially what the division in this legislation is trying to deal with.

So, if through regulation we can remove some fast growing species and take them out of the system, that should deal with many of the problems that people are faced with who have planted inappropriate fast growing trees in their backyard, front yard or side, as the case may be, but it will still be quite a restrictive process. Indeed, under this bill I would suggest that there are even more stringent constraints on removing those particularly old and, in that sense, truly significant trees.

Rather than a tree just being significant because it happens to be large, the idea here is to make significant trees those that truly are significant because they contribute to the amenity of the area in a number of ways.

The Hon. M. PARNELL: I just need a little bit more clarification. I thank the minister for his answer. It seems to me that a local council will have in mind the types of trees that it wants to protect in its local area. Whether it can rely on the state government to write regulations that protect all the sorts of trees that it wants protected, or whether it has to go out and individually name them and then list them in its development plan, I think, is a matter of some resource implications for each local council.

The reason for my question—and it might be impossible to answer; I do not know—is that it would seem to me that, the more thorough the government is with regulations, the less need for councils to have to go out and audit and list individual trees in their own area. So, if I rephrase my question: is it the government's intention to make regulations that are comprehensive enough that the vast majority of significant trees are properly recognised through regulation without the need for local councils having to undertake audits?

The Hon. P. HOLLOWAY: I think that probably what is more significant is exempting some of those trees. They might be olive trees, they might be radiata pines, they might be certain other trees that you might describe as a weed species. If you can get them out of the system, and not make them significant, I think that will help in that direction. When we last debated this bill I mentioned about a dozen species that were examples of trees that you could not consider to be significant. Conversely, there are those trees—and I mentioned the grey box earlier—which are not effectively protected by the legislation but which you could bring in to give them protection not now afforded.

Again, in trying to balance up the bill to make it more effective for dealing with the actual situations we face, I think you can deal with this from both ends. I notice that, in national parks, debates have occurred over radiata pines; for example, some have been cut down in Belair and so on. I think there has been some argument as to whether or not some of those old standing trees should have been cut. Anyone who lives in the Adelaide Hills like I do would know that those trees spread fairly quickly; some Mediterranean pines, in particular, can very rapidly take over whole areas. In effect, they become weed species, so it would seem rather absurd in those situations to have trees that are taking over existing biodiversity protected by significant tree legislation.

If we look at the national parks, it is exactly what has happened; they have cut down some of those trees. Of course, that is not to say that in one particular case in the right location you might have a tree of a species that is not indigenous but nevertheless it may be afforded protection under some council legislation for a number of reasons. It could be a copy of the Lone Pine brought back from Gallipoli or something like that. There may be other reasons why you would wish to do it.

Generally speaking, if you can get lists of species, that will at least in an absolute way reduce the amount of workload that is needed in dealing with individual assessments of trees. I acknowledge that grey box is one of the few examples I can think of which are not otherwise protected because of their size. Conversely, there is probably a fairly limited number of species where one would not wish to give them any protection at all.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 3, line 6—Delete 'group' and substitute 'stand'

The bill, by the definition of development, enables councils to list a group of trees and development plans as being significant trees; hence, they are included in the broader regulated tree definition. In the past, this has resulted in councils attempting to designate whole suburbs as containing significant trees rather than undertaking investigations as part of a proper and transparent development plan amendment process.

As a consequence, this amendment and subsequent amendments Nos 4, 8, 10 and 12 use the term 'standard trees' to ensure small areas are listed after a fair and transparent process. I acknowledge that, as the Hon. Mark Parnell just argued, that will ultimately take some resources, but clearly that is up to individuals councils if they wish to do it. One would expect that those councils whose communities value these particular stands of grey box, for example, would be prepared to do that. I believe it is a much more preferable way to deal with these stands of trees rather than a blanket suburb-wide designation.

The Hon. D.W. RIDGWAY: I indicate that the opposition supports the government's amendment.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 3, lines 8 and 9—Delete 'also falls within a class of trees declared to be regulated trees' and substitute:

is also declared to be a regulated tree, or also falls within a class of trees declared to be regulated trees,

This amendment proposes to delete the words 'also falls within a class of trees declared to be regulated trees' and to substitute 'is also declared to be a regulated tree, or also falls within a class of trees declared to be regulated trees'. This is a technical amendment consequential on the adoption of amendment No. 1. This states that a tree or stand of trees listed as a 'significant tree' in the development plan for an area constitutes a regulated tree even if it does not meet the standard two metres circumference set out in the regulation.

The Hon. D.W. RIDGWAY: I indicate that the opposition also supports this amendment. I live these days in the Mitcham Hills and I think that this does assist with some of those trees that may not fit into the criteria of the two metres in circumference.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 3, line 12—Delete 'group' and substitute 'stand'

This is a consequential amendment to one moved earlier.

The Hon. D.W. RIDGWAY: We support the amendment.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 3, lines 14 and 15—Delete 'also falls within a class of trees declared to be regulated trees' and substitute:

is also declared to be a regulated tree, or also falls within a class of trees declared to be regulated trees.

This is a technical amendment consequential on the adoption of an earlier amendment.

The Hon. D.W. RIDGWAY: I indicate the opposition's support.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 3, line 16—Before 'a tree' insert:

a tree declared to be a regulated tree by the regulations, or

This is a technical amendment, again, consequential on the adoption of the first amendment.

The Hon. D.W. RIDGWAY: I indicate that the opposition supports the amendment.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 3, after line 18—Insert:

(3a) Section 4(1), definition of tree-damaging activity—after 'health and appearance of a tree' insert:

or that is excluded by regulation from the ambit of this definition

This amendment allows the definition of 'tree-damaging activity' to be prescribed by way of regulation. This addresses concerns from the LGA about the original bill. This amendment will allow regulations to define precisely what is meant by 'maintenance pruning' and therefore exempt it from the definition of 'tree-damaging activity'.

It should be noted that currently each council defines 'maintenance pruning' differently, and there will be a benefit of clarifying it through the regulations. Obviously, it will require some work with the LGA and other stakeholders to settle on a definition. There is some work to be done, but I think that members can see the benefits that would follow if we do clearly define what is meant by 'maintenance pruning' and therefore exempt it from the definition of 'tree-damaging activity'. Obviously, I think it is important that we do that.

There is a need to allow maintenance pruning but, because of the great variation in how this is applied, it will make sense to use the regulations to get a definition. As I said, if the bill is carried, obviously we would be discussing that with the Local Government Association.

The Hon. D.W. RIDGWAY: Is the minister proposing with this amendment to have a uniform pruning code defined, I guess, by regulation in relation to particular classes of tree? Will you have, say, a uniform pruning regime for red gums and a different pruning regime for grey box or any other trees that may be deemed to be significant for either of the two courses that are available? I would like a bit of explanation as to how that might work.

The Hon. P. HOLLOWAY: It is probably too complex, and I do not know that that would be envisaged. However, obviously if that is the only way that it can be adequately expressed through regulations it may be contemplated. One would hope that one could get some definitions that are broad enough to cover most situations which would ordinarily be contemplated.

The bottom line here is that we want to define fairly precisely what we mean by 'maintenance pruning' so that it can be exempt from the definition of tree damaging activity and, therefore, not require the approvals that would be associated with that. Clearly, you want to go far enough as to enable reasonable pruning to be done but, obviously, not so far as to damage or deform the tree.

I imagine that in drafting those sorts of regulations you would need some level of expertise from arborists, but whether or not it would require a code I think is probably going too far. That is obviously something into which the LGA and other stakeholders would have an input. However, I hope that at least the council would agree that, if we can get a better definition of what maintenance pruning is, it will be in the best interests of the smoother operation of this section of the act.

The Hon. D.W. RIDGWAY: I think in his answer the minister has hit the nail on the head with respect to this legislation and, in particular, the regulations. He said that maintenance pruning would be defined by regulation. When I sought more detail, he indicated that it is too difficult and too broad to give more detail.

There is an example in my own neighbourhood, where a significant tree overhangs someone's property. Where does maintenance pruning sit in relation to someone protecting their property where there is a tree in the back corner of the property next door, which is not particularly damaging to that property, but there is some potential damage or threat or risk to the adjoining property?

In that case, the landowner may see maintenance pruning as being, 'I want to make sure that I remove the risk.' I think that is the stalemate we reached a couple of years ago; it becomes so complex. I do not think there was any real clarity. I think that is why the LGA wanted to see some draft regulations, so that it could have some understanding of where things are at. The minister may not be able to answer that question but, for the purpose of the debate, I want to put on the record the opposition's concern that it may take a millennium to draft the regulations that cover what the minister has described.

The Hon. P. HOLLOWAY: Obviously, you do not have the regulations, you have what we have now, and it ends up that any council can determine it to be effectively what it wants it to be and if you want to challenge it you go to court. If you have a council that believes that every tree is sacred, it will have very tight regulations, and if someone wants to get around that they have to challenge it in court. Conversely, you could have a council that has a completely different attitude towards it, where anything goes. I think that is the problem at present.

It comes back to the comments I made about this bill right from the start. Because trees come in so many different sizes, shapes, ages, locations, and so on, and because there are so many different properties, it will be difficult to get any piece of legislation that adequately deals with all situations. Without getting overly complicated and having massive, complex codes for everything, we are trying at least through regulations to get some more comprehensive and general definitions that will deal with most situations we face. Beyond that, I think it is hard to do much more.

The Hon. D.W. RIDGWAY: Is the minister proposing a set of maintenance pruning guidelines by regulation that is broad enough to cover a 'near enough is good enough' approach to all trees? The minister just said that beyond that it will get too complex. I do not know how we address those complex issues. If someone has a tree that falls into the too complex issue, where do they go at that point?

The Hon. P. HOLLOWAY: If one just talks in extremes, maintenance pruning of a tree would not necessarily be cutting it off a metre from the ground right across the stump. If you look at pruning textbooks, and if you have ever done the roses, you will know that there are certain places to prune that are in the interests of the tree. Of course, it is about keeping laterals and branches in the proper places.

It is pretty easy and well-defined if you are talking about roses and fruit trees and the like but, without having any expertise in this area, I imagine when it comes to the larger trees, such as gum trees and the like, it ought to be possible to come up with some similar general principles that would define what is maintenance pruning and what is excessive maintenance pruning. I think one only has to look at what some of the contractors for the electricity companies do on occasions to see the sorts of issues that are thrown up in relation to that. You can prune trees in ways that do not damage their overall shape or you can do it pretty badly.

That reminds me of some comments made earlier by the Leader of the Opposition when he talked about problems with trees in neighbouring yards. The Development Act, as such, is not necessarily the vehicle to do that. If trees are in yards and impacting in some way upon their neighbours, obviously those issues are dealt with more through common law. As I understand it, if you have branches overhanging you can cut them off level with the fence, providing you return them to the neighbour's yard. There are all sorts of common law provisions, and perhaps there are others who are more expert in that than me, because I am not particularly familiar with that law, but I know there are provisions like that. Clearly, if you have a problem between neighbours regarding a tree, it will be dealt with inevitably under the different regulations rather than through the Development Act.

The Hon. D.W. RIDGWAY: I think it indicates why we achieved the stalemate two years ago. The minister talked about maintenance pruning and used the comparison between good pruning and some of the pruning done by the contractors provided by electricity companies. They would say that, while it might disfigure the tree significantly, it is definitely maintenance pruning to achieve an outcome that makes the electricity transmission line safe. I do not want to prolong the debate, because we have other bills to deal with.

The Hon. P. Holloway interjecting:

The Hon. D.W. RIDGWAY: I understand that, but I think in the end this is why in the previous debate the opposition took the view that it did. We are not going to oppose this tonight and, if there is sufficient support between Mr Hood, the government and his other crossbench allies, we will not oppose it.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 3, after line 21—Insert:

(10) For the purposes of this Act, a stand of trees is a group of trees that form a relatively coherent group by virtue of being of the same or a similar species, size, age and structure.

Obviously that is an important definition. It is consequential on the amendment to amendment 2. This amendment defines the term 'stand of trees'. As previously explained, the bill relating to the definition of 'development' enables councils to list a group of trees in development plans as being significant trees. In the past, this has resulted in councils attempting to designate whole suburbs as containing significant trees rather than undertaking a proper and transparent development plan amendment process. As a consequence, this amendment and the subsequent amendments 10 and 12 use the term 'stand of trees' to ensure small areas are listed after a fair and transparent process.

The Hon. D.W. RIDGWAY: The opposition supports this amendment.

Amendment carried; clause as amended passed.

Clause 5.

The Hon. P. HOLLOWAY: I move:

Page 3, line 32—After 'native fauna' insert:

taking into account any criteria prescribed by the regulations

The bill enables councils to list a tree as a significant tree in the development plan if the tree constitutes 'an important habitat for native fauna'. This is a broad criterion. This amendment will allow regulations to be drafted to ensure that the importance of the habitat can be applied consistently across different council areas. It is important that the community as a whole and landowners have confidence that the listing process is fair, transparent and based on proper investigations.

The Hon. D.W. RIDGWAY: I have been made aware of a colony of birds that are in the Concordia area in the proposed Gawler East development, and I have just asked my colleague the Hon. John Dawkins if he knows what they are called. Some of the local residents are concerned that the development will put this colony of birds at risk. I wonder what the impact of this amendment will have on that particular development. The birds are a white-tailed something—I cannot recall the name. The Hon. Mark Parnell might know.

However, residents and the very hardworking candidate in the seat of Light (Mr Cosi Costa) have brought the matter of this colony of birds to my attention on a number of occasions. I think most members would be happy to support an amendment that protects the habitat of these particular birds or any native fauna. How does the minister see this impacting on developments such as that where you have a colony of birds?

The Hon. P. HOLLOWAY: There are a number of things to be undertaken. In that particular area I am not sure whether the significant tree legislation applies. The significant tree legislation applies to metropolitan councils. It was extended by this government some time back to include certain areas in the Mount Barker council district, and I think it includes the Adelaide Hills council, but whether that area out there is included I am not sure.

Of course, if it is native vegetation then the Native Vegetation Act may well apply. Obviously, it depends on factors like that. Clearly, if a tree is in an area and it is significant and if it is deemed to be important to native fauna, taking into account any criteria prescribed by the regulations, then the tree has that level of protection and its removal would require the appropriate consideration.

That is essentially all that the significant tree legislation does; it classifies trees into certain categories. Here we are making it a little more complicated than the original bill, under which a tree was significant if various criteria applied, including size. Here we are talking about regulated trees, significant trees. Once the criteria are set, if one wishes to remove the tree or damage the tree in some way, then the Development Act and its provisions apply. That is as far as the bill goes. This legislation may not apply if it is not in the appropriate council area.

Perhaps I could take this opportunity to clarify some of the misinformation that has been going around in relation to clearing in bushfire areas. Whereas the clearance around buildings of up to 20 metres involves the Native Vegetation Act, that does not necessarily apply to significant trees. However, the trees can only be significant in certain areas. They will be in the Adelaide Hills council area and parts of Mount Barker but they may not be, for example, in a number of other councils in the Adelaide Hills area because the legislation does not apply in those districts. There are a number of factors that determine whether or not a tree is significant, other than just these definitions.

The Hon. D.W. RIDGWAY: I have a point of clarification. We have had a range of questions in the past few days about the Plan for Greater Adelaide and we see significant population increases and residential development by way of this plan in the Roseworthy area, on the edge of the Barossa and certainly in the Gawler East area. Does the minister envisage that these areas will be brought under the umbrella of this legislation or will they still remain outside it?

The Hon. P. HOLLOWAY: I am actually not sure. As the honourable member would know around Gawler, you have the Town of Gawler, the Light council and the Barossa Council. I would have to go back and have a look at the regulations that determine where they apply, but clearly the significant tree legislation was specifically intended to apply in built-up areas. I think it was the view of the parliament at the time that native vegetation law would broadly apply outside the built-up areas and, in the built-up areas, the significant tree legislation would apply. However, as we have seen, there are overlaps.

Some of the complexities we have in relation to fire at the moment mean that there is an overlap in that legislation. Of course, it is made even harder when the greatest threat from fire, for example, is from native vegetation down at the house level. I am told that, if you have tall trees, fire can actually go over the top of a house and there can actually be less risk.

They are the sort of complexities in dealing with fire protection in relation to which one needs to take the advice of experts, but it just indicates another complexity that you have in dealing with this sort of legislation. The contribution or the threat imposed by a tree to fire can vary significantly depending on the situation. I would have thought that eventually as Adelaide grows, if an area becomes built-up—a part of the greater area—one would expect that this legislation would apply. That would be the expectation.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 3, line 35—Delete 'group' and substitute 'stand'

It is a consequential amendment.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 4, line 7—After 'native fauna' insert:

taking into account any criteria prescribed by the regulations

This amendment is consequential on amendment No. 9. The bill enables councils to list stands of trees as significant trees in the development plan if a stand of trees constitutes 'an important habitat for native fauna'. This is a broad definition.

These amendments will allow regulations to be drafted to ensure that the importance of a habitat can be applied consistently across different council areas. This will require considerable research before appropriate regulations can be drafted. It is important that the community as a whole and landowners have confidence that the listing process is fair, transparent and based on proper investigations.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 4, line 12—Delete 'group' and substitute 'stand'

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 4, after line 15—Insert:

(4c) For the purposes of subsection (4a), a Development Plan must identify the location of a tree or stand of trees in accordance with any requirements imposed by the regulations.

In order to provide certainty for landowners and councils, it is proposed that individual or stands of significant trees be listed in development plans by certificate of title references and coordinates.

Amendment carried; clause as amended passed.

New clauses 5A and 5B.

The Hon. P. HOLLOWAY: I move:

Page 4, after line 15—Insert:

5A—Amendment of section 25—Amendments by a council

Section 25—after subsection (12) insert:

(12a) If a proposed amendment declares a tree to be a significant tree or a stand of trees to be significant trees, the council must, at or before the time when the DPA is released for public consultation, give each owner of land where the tree or trees are located a written notice—

(a) informing the owner of the proposed amendment; and

(b) inviting the owner to make submissions on the amendment to the council within the period provided for public consultation under the regulations.

5B—Amendment of section 26—Amendment by the Minister

Section 26—after subsection (7) insert:

(7a) If a proposed amendment declares a tree to be a significant tree or a stand of trees to be significant trees, the Minister must, at or before the time when the DPA is released for public consultation, give each owner of land where the tree or trees are located a written notice—

(a) informing the owner of the proposed amendment; and

(b) inviting the owner to make submissions on the amendment to the Minister within the period provided for public consultation under the regulations.

The bill enables councils or the minister to list significant trees in development plans through the preparation of a development plan amendment process.

It is proposed that the bill be amended to ensure that the development plan amendment process involves notification of the owners of trees or stands of trees which are proposed to be listed as significant trees; notification of these owners at the commencement of the public consultation process; and landowners being provided with an opportunity to make written submissions on such a listing proposal, as well as to be heard by the council, DPAC or a regional body hearing such submissions.

The Hon. D.W. RIDGWAY: I come back to the Gawler East proposal. The trees would be identified as significant in that proposal if the bill is supported. Now that we indicate that, if they are a habitat for fauna, they become significant trees even if they are not significant in nature, in their own size. So, with any development plan amendment released for consultation—and Gawler East is probably the easiest one, as the minister and other members in this chamber are familiar with it—landowners would be identified as part of that whole rezoning process that these trees are significant for the following reasons, including size or habitat for fauna. Is that correct?

The Hon. P. HOLLOWAY: I think so, if I understand the member correctly. The honourable member is talking about Gawler East. Clearly, if a major tract of land, a significant size of land—hundreds of hectares, for example—is to be turned over for urban development, one looks at that land. There is obviously a creek line or drainage line along there, as well as a major river—actually, South Para River borders it. Clearly, those areas would be defined and protected as part of any subdivision process. The development plan amendment would, I think, take all that into account in any case.

Obviously, these sections are indicated not for those sorts of situations but more where a council might be retrospectively going back through an area that has been long urbanised to update its development plan in relation to significant trees. I think that is essentially the situation that it is designed for, not for new subdivision in greenfield areas.

I make the point that, with any subdivision in a greenfield area, if there are stands of trees, inevitably nowadays they would be protected as part of any subdivision plan, and I am sure that any council or the government—whatever the relevant body—would require that.

The Hon. M. PARNELL: I support proposed new clauses 5A and 5B, because what they provide is that, if someone is to have a development plan list a significant tree in their yard, they have a right to be advised. I urge the government to take the thinking behind this clause and apply it to other situations because, in my 10 years with the Environmental Defenders Office, one of the most common complaints I had were people whose properties were rezoned underneath them or zoned flood plain when they had not been before, and all of a sudden they were precluded from building. People had development plan changes affect what they could do with their property yet, under the Development Act, they had no right whatsoever to be even notified that the changes were about to occur, or had occurred, other than the general notification in the GovernmentGazette and in public newspapers.

So, my comment, if you like, rather than a question of the minister, is: I think this is a good initiative—that people who are directly affected by changes to the development plan have a right to be directly notified. I urge the minister to apply that thinking to other Development Act changes, especially those that affect a discreet section of the population. You would not want to have to notify every resident of Adelaide that a general principle had changed in a development plan but, when it affects a limited number of people, absolutely we should notify them directly.

The Hon. P. HOLLOWAY: Essentially, the process here mirrors what is done with heritage listing to which fairly similar principles apply. There is obviously a degree of subjectiveness about what is heritage and what is not, but I just assert that this process essentially mirrors what we already do in relation to heritage listing.

New clauses inserted.

Clause 6.

The Hon. P. HOLLOWAY: I move:

Page 4, after line 19—Insert:

(3aa) A relevant authority should, in dealing with an application that relates to a regulated tree, unless the relevant authority considers that special circumstances apply, seek to make any assessment as to whether the tree is a significant tree without requesting the applicant to provide an expert or technical report relating to the tree.

This amendment provides clear direction to councils that an arborist report is not a prerequisite for all applications relating to regulated trees. The amendment stipulates that the assessment as to whether a regulated tree will be assessed as a significant tree is to be considered by the normal development application process relating to amenity issues. An arborist report would only be required in special circumstances where the health of a significant tree or stand of significant trees was a critical factor to the decision.

The Hon. M. PARNELL: This is a fairly critical amendment and it was the one on which I focused in my brief second reading contribution. I think we need to look at the proposed insertion of paragraph (3aa) alongside the insertion of paragraph (3a) in the bill. Paragraph (3a), which is currently inserted through clause 6, basically says that the planning authorities should not insist on an arborist's report in determining whether or not a regulated tree should be chopped down, unless it is a significant tree. The minister's amendment says 'and also the planner should not require an arborist's report to determine whether or not it is a significant tree'.

The question remains: can the planning officer, if having determined without the aid of technical reports such as an arborist report that it is a significant tree, then freely insist that an arborist's report be obtained before granting approval for that tree to be removed?

The Hon. P. HOLLOWAY: Clearly, this amendment seeks to address those issues—and I think the Hon. Mr Hood mentioned this earlier—where people have been required to provide reports, which can be particularly expensive if you are a pensioner, for example, and you have a tree in your backyard that might be cracking the house or something like that. If it is doing some damage, why would one necessarily require an arborist's report if that is really not directly relevant to the decision about whether development approval should be given to the removal or pruning of the tree? Essentially, that is the point here. Certainly anecdotal evidence suggests that some councils are requiring a much higher level of report, even though that is not strictly necessary to any reasonable decision on the fate of the tree.

The Hon. M. PARNELL: I might phrase my question in another way because it goes to the key issue of when a council officer can insist on an arborist's report. Under the Hon. Dennis Hood's proposal, if it is just an ordinary old regulated tree—in other words, it is not significant, it is just regulated—they cannot insist on an arborist's report. On the minister's amendment, the council planner cannot insist on an arborist's report to determine whether or not it is a significant tree. My question is: if the planner makes that assessment without the aid of a report, is the planner then free to say, 'I have assessed that it is a significant tree and I now insist on your getting an arborist's report before I let you chop it down'?. Is that how this would work under your amendment?

The Hon. P. HOLLOWAY: Councils now have to determine whether an application is a merit assessed development or a complying development. They now have to make that judgment and, by analogy, a council would now make a judgment as to the status of the tree.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 4, line 23—Delete 'the provision of' and substitute:

the applicant to provide

This amendment is consequential on amendment No. 15. This amendment is to ensure that an application relating to a regulated tree is dealt with as a normal development assessment application process relating to amenity issues. An arborist's report is only being required in special circumstances when it is critical to the decision making. The bill does not require an arborist's report for assessing significant trees and, once again, should only be required when it is critical in the normal development assessment process.

Amendment carried; clause as amended passed.

New clause 6A.

The Hon. P. HOLLOWAY: I move:

Page 4, after line 24—Insert:

6A—Amendment of section 42—Conditions

Section 42—after subsection (3) insert:

(4) Subject to subsections (6) and (8), if a development authorisation provides for the killing, destruction or removal of a regulated tree or a significant tree, the relevant authority must apply the principle that the development authorisation be subject to a condition that the prescribed number of trees (of a kind determined by the relevant authority) must be planted and maintained to replace the tree (with the cost of planting to be the responsibility of the applicant or any person who acquires the benefit of the consent and the cost of maintenance to be the responsibility of the owner of the land).

(5) A tree planted under subsection (4) must satisfy any criteria prescribed by the regulations (which may include criteria that require that any such tree not be of a species prescribed by the regulations).

(6) The relevant authority may, on the application of the applicant, determine that a payment of an amount calculated in accordance with the regulations be made into the relevant fund in lieu of planting one or more replacement trees under subsection (4) (and the requirements under subsection (4) will then be adjusted accordingly).

(7) For the purposes of subsection (6), the relevant fund is—

(a) unless paragraph (b) applies—an urban trees fund for the area where the relevant tree is situated;

(b) if—

(i) the relevant authority is a council and an urban trees fund has not been established for the area where the relevant tree is situated; or

(ii) the relevant authority is the Development Assessment Commission,

the Planning and Development Fund.

(8) Subsections (4) and (6) do not apply if—

(a) the relevant tree is of a class excluded from the operation of those subsections by the regulations; or

(b) the relevant authority determines that it is appropriate to grant an exemption under this subsection in a particular case after taking into account any criteria prescribed by the regulations and the minister concurs in the granting of the exemption.

The amendment requires that any approval to remove a regulated or significant tree is to have a condition that replacement trees are planted or that money is paid into an urban trees fund established by the relevant council or the existing Planning and Development Fund.

This amendment has been moved in order to create greater consistency in the administration of the regulated tree provisions. This amendment also specifies that the regulations can require that certain trees are not planted as replacement trees. This is to avoid the problem of people planting exempted trees, in order to circumvent the provisions in the act, that inadvertently could cause damage to structures or pipes.

In order to provide consistency in administration, this amendment requires the payment of moneys to the Planning and Development Fund in those circumstances where a council itself has not established an urban trees fund. Councils would be able to continue to apply for grants from the Planning and Development Fund.

The Hon. D.W. RIDGWAY: This issue has been a sticking point for the opposition since the bill was introduced by the government several years ago; that is, the urban trees fund and moneys paid into it. In relation to the amount that is determined, how do you value a tree? This is one of the fundamental issues in relation to this bill. The minister some two years ago was unable to clarify how a tree could be valued and how that could be consistent across the metropolitan area. I do not know how you do it.

We talked earlier about trees which are classified as significant or regulated because of the fauna that live in them. The trees themselves may be poor specimens of a particular species yet they are a habitat for fauna. How do you place a value on that? If a developer in an area wants to cut down a stand of trees for the purpose of development, how do you value the fauna?

They may not be significant or regulated trees but, rather, non-indigenous trees which are a habitat for a particular species we want to protect. Cockatoos fly around the Mitcham area and the yellow-tailed black cockatoos eat the pine cones from the radiata pines, which, clearly, are not native to the area. In most cases, people want to see those trees removed, but the native birds—and we do not see many of them—use them as a food source. Will the minister explain how we value a tree?

The Hon. P. HOLLOWAY: By analogy, we have similar provisions in the Development Act in relation to car parking. We have a car parking fund. In lieu of the provision of car parks on properties, people in commercial areas may be required to contribute to a car parking fund. This is so that car parks can be provided for the general area. That is a well established development plan principle—

An honourable member interjecting:

The Hon. P. HOLLOWAY: It is not that different in concept; it is the same case here, by default. If the tree is such that there is no other way you can develop a property, and if approval is given for removal of that tree, the logic is that you would plant replacement trees somewhere else. Similarly, with a car parking fund, if for some reason you cannot provide car parking on your own property you can contribute to a fund so that the council can provide car parks elsewhere. It is not all that different in concept when you think about it. Not all councils have car parking funds, but a number do, and it seems to work reasonably well.

The Hon. D.W. Ridgway: We are talking about trees, not car parks.

The Hon. P. HOLLOWAY: I am answering it by way of analogy, in terms of value, of what a car park is worth. What is a tree worth? Obviously, one has to reach a fairly arbitrary, average value but, just as it works with car parks, I am sure it can work with trees.

The Hon. S.G. WADE: I think the minister's analogy works well in terms of the offset principle; a car park here and car park there, a tree here and a tree there. The problem is that the honourable member is raising the issue of the value of trees. How do you say that one tree of that type is worth eight trees in another place? One car park of a certain space in a certain district; if it is not there it is here. That is easy to offset, easy to value. I agree with the honourable member. This amendment does raise some significant issues in terms of valuation; it is almost an aesthetic value, the value of a tree.

The Hon. P. HOLLOWAY: The alternative is to have nothing. The principle behind this is that, at present, if you are determined to get a tree down, you hire an arborist, you get through the system, you might spend thousands of dollars in arborists' reports and other things, and the tree is removed. That is it. There is no community compensation, if you like. If you have a tree fund, that money can at least go into planting trees elsewhere. I think the philosophy behind it is probably more important than the technicality.

Of course, the value of each tree will be different. It comes down to 'How long is a piece of string?' However, I believe that you can get an average value, like we do with car parks—because not all car parks are equally valuable; it depends on where they are. If someone does get agreement to the removal of a tree, all we are really trying to do is ensure that there will at least be compensation, if you like, to the community for its removal. Funds will be available for the replanting of trees elsewhere. They do not exist at the moment. One can argue all day about what trees are worth, but I would have thought that the underlying principle, that of getting some return to the community, is a valuable one.

The Hon. D.G.E. HOOD: I think the opposition has a point. It is difficult to gauge the value of a tree; I do not think any of us would disagree with that. However, the way I reconciled this for myself in preparing this was that this urban trees fund (if you like) comes into consideration only if the council and the applicant cannot agree on either replacing or replanting the tree in a specific location. So there are steps in the process before you get to this last resort type of situation. Even then, while it is not ideal, if you do get to this last resort of a sum of money being contributed to this fund, it is at least some compensation. The difficulty, of course, is exactly what that value should be. My understanding is that that would be decided between the applicant and the council themselves; they would reach agreement on that. As I said at the outset, it is not perfect, but I think it is better than nothing.

The Hon. D.W. RIDGWAY: I will quickly put on the record for the fifteenth time that I think the key flaw in this bill is the value of a tree. We have talked about an offset: do you plant one tree somewhere else or do you plant 10? You could get to the point where you cannot negotiate any further with the local government body, so then the decision is that you cut it down and you pay into a trees fund. What if you are the only person who has paid into that trees fund for five years, and how much do you value it at?

Then that local council has to find a place to plant the trees. Once they put money into an urban trees fund, I am assuming council will then possibly purchase some land or there may be some council land available. I live in the Mitcham area, and you have the Mitcham Village park near Brownhill Creek. I assume there would be odd places there where council could say that, given that the big old red gums there are quite old, it would be a sensible thing to plant a half dozen new young red gums in that area. I can accept that there would be an odd place that you might plant a few extra trees, but I just do not understand how you can value a tree.

I come back to the tree I spoke about in relation to a staff member of the Liberal Party. I think they had a quote—and I would have to check Hansard—of many thousands of dollars to have it cut down, if they could get it cut down at all. It was a brand new house, probably worth half a million dollars, and it was quite an expensive project. If they could have paid $10,000 or $20,000 to get rid of the tree, they would have done so. Is that the sort of value? I know that in discussions I had with the minister's advisers, back when it was a government bill, they talked about a figure of just a few hundred dollars.

I put on the record that the opposition will not be supporting this amendment. I expect it will get through; we will not divide on it, because we have a lot of business to deal with tonight. However, it is clearly an area where I think there will be significant difficulty in valuing a tree. We will see money going into an urban trees fund that will never be used to plant trees because the council may not have an area in which to plant them. So, the council will need to buy some land, and there will not be sufficient money there. Then there is the maintenance and the watering. A mature tree 50 or 100 years old has a root system which maintains itself free of charge.

Once you cut it down and the decision is made to plant 10 trees elsewhere because that is considered a fair trade-off, who keeps the weeds and vermin away and makes sure that those trees are watered? Will the urban trees fund be expected to pay for irrigation, weed control, vandal control and fire prevention? There is a whole range of questions, and I think it becomes so complex that it is almost unworkable.

The Hon. P. HOLLOWAY: If someone kills, destroys or removes a regulated or significant tree, new clause 6A provides:

...the relevant authority must apply the principle that the development authorisation be subject to a condition that the prescribed number of trees (of a kind determined by the relevant authority) must be planted and maintained to replace the tree (with the cost of planting to be the responsibility of the applicant or any person who requires the benefit of the consent and the cost of maintenance to be the responsibility of the owner of the land).

That is the condition for removing the tree or, if that is not possible because, for example, the block might be too small, the alternative is to pay into a fund. Obviously, the regulation will determine some price, and I guess that will be worked out in negotiation with the local council. If the honourable member looks at councils such as Unley, for example, a number of pocket parks along creek lines are likely to have been developed in that area. It is quite amazing the transformation that has taken place.

You actually do not need large areas for parks. If I can very briefly digress for a moment, on the TOD tour, one of the things that really struck me was how some of the most successful park areas are not huge areas of parkland. Quite small areas, with a great deal of attention paid to good design and public art, for example, are often much more popular. I think you can see that in some of our more dense suburbs, like Norwood and Unley—probably Unley in particular—where some of those pocket parks are extremely popular and they have, in many cases, significant trees in them.

New clause inserted.

Clause 7.

The Hon. P. HOLLOWAY: I move:

Page 4, lines 36 and 37—Delete paragraph (a) and substitute:

(a) all amounts paid into the fund as a condition of a development authorisation under section 42; and

This amendment makes it clear that all moneys provided by an applicant in lieu of replacement trees are to be paid into the urban trees fund established by the council.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 4, after line 38—Insert:

and

(c) any amounts paid to the credit of the fund under subsection (9).

This amendment ensures that money from the sale of any land purchased under the fund is maintained as part of the urban trees fund established by the council. I think it addresses a point raised by the Leader of the Opposition earlier that, yes, if councils are in built-up areas like Unley that do not have much land, they can use some of the money in the urban trees fund to purchase land, but the condition imposed here is that money from the sale of any land purchased under that fund is maintained as part of the urban trees fund established by the council.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 5, lines 1 to 26—Delete subsections (5) and (6)

This is a consequential and technical amendment. The provisions laid down for the fund are now included in section 42 of the act rather than section 50B.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 5, lines 30 to 37—Delete subsections (8) and (9) and substitute:

(8) Money standing to the credit of an urban trees fund may be applied by the council—

(a) to maintain or plant trees in the designated area which are or will (when fully grown) constitute significant trees under this act; or

(b) to purchase land within the designated area in order to maintain or plant trees which are or will (when fully grown) constitute significant trees under this act.

(9) The council must, if it subsequently sells land purchased under subsection (8)(b), pay the proceeds of sale into an urban trees fund maintained by the council under this section, subject to the following qualifications:

(a) if an urban trees fund is no longer maintained by the council, the proceeds must be applied for a purpose or purposes consistent with subsection (8)(a) or (b);

(b) if money from an urban trees fund only constituted a proportion of the purchase price of the land (the designated proportion), the money that is subject to these requirements is the designated proportion of the proceeds of sale.

This amendment enables councils to use the urban trees fund to purchase land in order to protect or plant significant trees. Naturally enough, moneys from the urban trees fund could be augmented by grants from the Planning and Development Fund. Under this government, nearly $50 million has been given to councils for open space purposes. It may also be possible for councils to seek contributions from other state government funding sources as well as from their own parks and gardens budget as well as stormwater management programs.

This amendment also ensures that, should a council sell part of the land purchased with an urban trees fund, the money returns to the urban trees fund. The amendment deals with a proportion of expenditure so that any capital gain from the sale of the portion of the land also in part goes to the urban trees fund. This amendment provides greater flexibility for innovative councils while ensuring accountability to the communities.

The Hon. D.W. RIDGWAY: If a council established a parcel of land with some trees on it, I understand about the maintenance of those trees, but what happens if those trees are destroyed by fire? Is the council then required to replant those trees using the urban trees fund? I accept that the land value does not change; it may be enhanced if the trees are removed by fire. How does the legislation deal with the removal of trees when they are not cut down?

The Hon. P. HOLLOWAY: All this clause deals with is the case that, if a council accumulates money under an urban trees fund and buys land with it for public space purposes, if it sells that land, surely it is appropriate that the money that it receives from the land—and any gain it makes on it—should be retained with an urban trees fund. Otherwise, if the money is used to buy land and the land is then sold at some point afterwards, you have not achieved the purpose of this section of the bill which is to ensure that the money that is paid for that purpose is ultimately used to replace trees. I really do not think we need go any further than that in terms of an explanation of this clause.

The Hon. D.W. RIDGWAY: New subsection (8)(b) refers to land within the designated area in order to maintain or plant trees which are or will (when fully grown) constitute significant trees under this act. Is 'fully grown' prescribed in the regulations? Is it a 2 metre circumference? Clearly, with the grey box it cannot be. What is the definition of 'fully grown'?

The Hon. P. HOLLOWAY: I will have to check on that. I assume it is probably common usage. It is not defined. It would just be common usage and, therefore, if it was ever in dispute, it would be up to the courts to determine. I think that common English should make that pretty clear. I think we know the difference between mature trees and immature trees. Obviously, a fully grown tree is—

The Hon. D.W. Ridgway: Fully grown.

The Hon. P. HOLLOWAY: Yes.

The Hon. D.W. RIDGWAY: I will use the example again of the staff member I have referred to previously.

The Hon. S.G. Wade: Be careful.

The Hon. D.W. RIDGWAY: Yes, I know. They have a river red gum in their backyard that the arborist says came up after it self-seeded once the first house was built. It is about 50 or 60 years old. He said it is a pretty young tree. It is a very big tree but it is a young tree. It is certainly not fully grown for a red gum. It is a lovely young, fresh tree. I do not necessarily ask a question; I am just expressing a statement. It is a bloody big tree in their backyard, but it is not fully grown.

The Hon. P. HOLLOWAY: The proposed subsection provides:

Money standing to the credit of an urban trees fund may be applied by the council—

(b) to purchase land within the designated area in order to maintain or plant trees which are or will (when fully grown) constitute significant trees under this act.

The Hon. D.W. Ridgway interjecting:

The Hon. P. HOLLOWAY: I repeat: which will, when fully grown, constitute significant trees under this act. The use of money to the credit of the urban trees fund is applied to trees that will be significant trees if they were fully grown. That is the context in which the words 'fully grown' are used.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Page 5—

After line 32 [section 50B]—After subsection (9) insert:

(10) Despite the operation of any other provision, if—

(a) a person is required to make a payment in lieu of planting one or more trees; and

(b) the person is a designated person,

then the amount of the payment that would otherwise apply must be discounted by 66.6 per cent.

After line 33 [section 50B(9)]—Insert:

(11) In this section—

designated person means a person—

(a) who is an owner and occupier of the land where the relevant tree is situated; and

(b) who—

(i) is the holder of a current pensioner concession card issued by the commonwealth government and is in receipt of a full commonwealth pension in connection with that card; or

(ii) falls within a class of person prescribed by the regulations for the purposes of this definition.

For the benefit of all members, it may be worth noting that these amendments previously had the support of the government. The amendments relate to clause 7 of the bill. Amendment No. 1 provides that, where a person is otherwise required to make a payment in lieu of planting one or more trees and the person is a designated person, the amount of the payment must be discounted by 66.6 per cent.

A 'designated person' is defined in amendment No. 2 as a person who is an owner and an occupier of the land where the relevant tree is situated and is the holder of a current pensioner concession card issued by the commonwealth government and is in receipt of a full commonwealth pension. It does not apply to pensioners who are in receipt of a part pension only or who do not own or occupy the premises where the tree is located. The reason for this is to ensure that the discount is applicable to those who really need it and to avoid situations arising where the discount may be abused by individuals who are not properly entitled to it.

Elderly people in particular may not be able to replant or maintain more than one tree, or in many instances even one tree. Essentially, the purpose of the amendments is to ensure that those pensioners receive a discount given that they receive an equivalent of approximately one-quarter of the average weekly earnings in entitlements. These individuals will no doubt experience financial hardship in paying to have a tree removed in the first instance which, depending on the size of the tree, can run into thousands of dollars.

These amendments are really intended to ease any additional financial burdens that would otherwise be imposed on pensioners as a result of the establishment of the urban trees fund. A designated person also includes a person who falls within the class of persons prescribed by the regulations.

The purpose of this subclause is to ensure that, if at a later point it becomes apparent that there is another group of people who ought to receive the discount, the government can deal with that by way of regulation rather than by amending the principal act. I urge all honourable members to support these amendments.

The Hon. D.W. RIDGWAY: I indicate that the opposition will be supporting the amendments, but I wish to ask a question of the minister, given the government's support of these amendments previously.

If a pensioner, for example, wants to contemplate over the next three or four years selling their property and moving to a retirement village or a smaller property, and if the urban trees fund charge or the offset are significant, and they want to sell their property to a developer to do something else with, or they just want to sell the property, would this be a mechanism for the purchaser to do a deal with the person who is receiving a pension to say, 'You apply to have the trees removed, because you can get it at a discount, and when the dust has settled and the leaves have all fallen we will complete the purchase.'?

We understand the intention of the Hon. John Darley. I think it is a good intention not to burden pensioners who are not able to pay or maintain extra trees, but I indicate that I can see an opportunity for this to be a way for people to short-circuit the system. If a high value is put on a tree for the urban trees fund or for offsets, I assume it allows those people to do a deal with pensioners (and I will ask the minister to clarify this) to avoid having to pay the cost.

The Hon. P. HOLLOWAY: I doubt that, in practice, that would be a huge problem. If it was, it could always be revisited. Whereas it could, in theory, be a loophole, I doubt that it is one that would be exploited very often, if at all.

The Hon. M. PARNELL: I also have a brief question of the minister. As I understand it, in the normal situation where there are discounts to concession holders, the state government often steps in and pays the difference. My understanding is that that is how it works with utilities bills and public transport and things like that. Would it be the intention of the state government to reimburse councils—and, in particular, reimburse their urban trees fund—for any revenue shortfall that results from pensioner applications, or is it the case that a local council unfortunate enough to have a lot of pensioners in its area would simply receive less money from the fund than a council that had predominantly younger people?

The Hon. P. HOLLOWAY: The point here is that, unlike the current situation, where removing trees can be an incredibly expensive exercise for people, in those circumstances considered by the act where that removal is granted, is it not better to have some money going into a fund of the council that can be used to replace trees? One could certainly try to go to all levels of equity in relation to that, but I think the amendment moved by the Hon. Mr Darley is a fairly straightforward one; we give the concession. I do not think that the scale of the problem would be such that one would really need to start talking about those complicated equity measures.

The Hon. D.G.E. HOOD: I indicate that Family First will also be supporting the amendments.

Amendments carried; clause as amended passed.

Clause 8.

The Hon. P. HOLLOWAY: I move:

Page 5, after line 40—Insert:

(2) Section 54A(2)(c)—before 'the owner of the land' insert:

except in circumstances prescribed by the regulations.

As a result of submissions on the original bill by the LGA, amendment No. 20 exempts landowners from seeking retrospective approval when trees have been cut down by a prescribed emergency body, such as the SES, the CFS, the MFS and councils, as part of a genuine emergency. This will avoid the situation of people facing the stress of an emergency not having the additional burden of then having to apply to remove a tree that has already been felled.

Amendment carried; clause as amended passed.

Clause 9 passed.

Clause 10.

The Hon. P. HOLLOWAY: I move:

Page 6, lines 32 and 33—Delete ', or ceases to be an owner or occupier of the relevant land' and substitute:

at the time of the making of the order

This amendment addresses concerns that the make-good orders in the bill could be too onerous on the innocent purchaser of an allotment where illegal removal of a regulated tree had occurred prior to the sale of the property. This amendment now enables a council to seek an order from the ERD Court. If a person has undertaken the illegal removal of a regulated tree and has put the property on the market, the council will be made aware of proposed sales through requests for section 7 notices under the Real Property Act. In those circumstances where the council becomes aware of the illegal activity after the sale of the property, the council can still take compliance action against the previous owner under the Development Act. Thus, action is against the offending person rather than the new landowner.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 6, after line 39—Insert:

(4a) Subject to subsection (4b), an order under this section will cease to apply with respect to land if or when the land is sold to a genuine arms-length purchaser for value.

(4b) Subsection (4a) does not apply if the order is noted against the relevant instrument of title or, in the case of land not under the provisions of the Real Property Act 1886, against the land under a scheme prescribed by the regulations for the purposes of this subsection.

This amendment is associated with amendment No. 23. This amendment clarifies that an order cannot be made against a person who has purchased a property in good faith and not colluded with the previous owner in regard to the removal of any regulated tree.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 7, line 3—Delete the penalty provision and substitute:

Maximum penalty: $60,000.

This amendment increases the maximum penalty fine from $30,000 to $60,000 when a person fails to comply with a make-good order by the court under section 106(a)(1)or (2) relating to establishing a tree or removing buildings associated with the illegal removal or damaging of trees. This amendment reflects the desire of the government to discourage illegal development and reflects the penalty changes made as part of the assessment procedures act amendments to the Development Act. The ERD Court can judge the penalty based on the circumstances applying to each case. Consideration should be given as to whether these penalty provisions are still appropriate. General planning offences under the act carry a maximum penalty of $120,000, with general building offences having a maximum penalty of $60,000. While it is agreed that a monetary figure rather than a divisional penalty should be named, the offences are serious enough to warrant being brought into line with the general offences penalty, in this case, $120,000.

The Hon. D.G.E. HOOD: Briefly, this amendment seeks to double the penalties in the original government bill, which is the bill I presented to the chamber in its current form. So the original penalty was what is referred to as a division 4 fine, and my understanding is that is $30,000, and that has increased to $60,000. My question to the minister is: can he confirm that is correct, that it is a doubling of the amount? My understanding is that it is. Secondly, if so, how often is $30,000 applied as a penalty? Is the minister aware whether it has ever been applied as a penalty, because $60,000 is certainly a very significant fine?

The Hon. P. HOLLOWAY: Yes; I was talking here about illegal development and, obviously, there would have to be pretty exceptional reasons for a court to make an order of that order.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 7, line 8—Delete the penalty provision and substitute:

Maximum penalty: $15,000

Likewise, this is a change to the penalty provisions. This amendment increases the maximum penalty fine from $8,000 to $15,000 where a person hinders another person from undertaking a make good order from the court.

Amendment carried; clause as amended passed.

New clause 11.

The Hon. P. HOLLOWAY: I move:

Page 7, after line 8—Insert:

11—Amendment of Schedule 1—Regulations

Schedule 1, item 9—delete 'power or function under' and substitute:

power or function under or in relation to the operation of

This amendment enables the regulations to prescribe qualifications required by a person preparing any arborist's report in regard to the health of a significant tree or stand of trees. This, in association with other regulation-making provisions, will also enable regulations to ensure that tree-felling contractors are not providing advice in situations where they have a conflict of interest.

New clause inserted.

Schedule and title passed.

Bill reported with amendments.

Third Reading

The Hon. D.G.E. HOOD (22:47): I move:

That this bill be now read a third time.

The Hon. D.W. RIDGWAY: I indicate that the opposition, from the time the government introduced the bill, expressed a number of concerns about its cumbersome nature, and I think tonight we have discovered a whole range of areas (the value of trees, the regulations, the pruning and maintenance) that are still very uncertain as to their operation. I think it is appropriate that I record the opposition's position and indicate that it still does not support this bill at this stage.

The council divided on the third reading:

AYES (10)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Gago, G.E. Gazzola, J.M. Holloway, P.
Hood, D.G.E. (teller) Hunter, I.K. Wortley, R.P.
Zollo, C.
NOES (9)
Dawkins, J.S.L. Lawson, R.D. Lensink, J.M.A.
Lucas, R.I. Parnell, M. Ridgway, D.W. (teller)
Schaefer, C.V. Wade, S.G. Winderlich, D.N.
PAIRS (2)
Finnigan, B.V. Stephens, T.J.

Majority of 1 for the ayes.

Third reading thus carried.

Bill passed.

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