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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-28 Daily Xml
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DEVELOPMENT (REGULATED TREES) AMENDMENT BILL

Introduction and First Reading

The Hon. M. PARNELL (16:28): Obtained leave and introduced a bill for an act to amend the Development Act 1993. Read a first time.

Second Reading

The Hon. M. PARNELL (16:30): I move:

That this bill be now read a second time.

This is a bill that I have been working on for many months. It is a bill aimed at fixing a number of problems that the government has created through its new regulated tree regime. As members would know, that regime involves three levels of delegated legislation, if you like: the Development Act, regulated tree regulations under the development regulations and the development plan amendment that has been in operation for some time and which has just recently been formalised. So this bill is designed to fix a number of problems.

About eight or nine months ago I wrote to every local council in South Australia affected by this legislation and posed five questions to them. I want to go through those questions as well as the answers that the councils have given. The first question was: in light of the changes made to the significant or regulated tree regime, has the number of applications for tree-damaging activities increased in your council area? Secondly, I asked whether council planning officers were finding it difficult to assess applications in the absence of arborists' reports because, as members would know, this parliament legislated to make it more difficult for councils to insist on arborists' reports when significant trees were being removed.

Thirdly, I asked: what has been the impact of the new exemptions on tree removal? By exemptions, we are talking about the species list and also proximity to buildings. Fourthly: are more trees being removed now in your council area compared to previous years? Fifthly: is council considering listing individual significant trees in its development plan?

That questionnaire, if you like, elicited a wide range of responses, but some clear themes have emerged, and it is those themes that I am dealing with in this legislation. For example, if we start with the Burnside council, the first thing it said was that it had serious concerns about the effect of the Development (Regulated Trees) Variation Regulations. It was so concerned that it in fact resolved to write to the Premier basically expressing its disappointment at the apparent lack of government interest in retaining decent significant tree legislation.

Given the nature of the Burnside area, the Burnside council is probably one of the most passionate councils in terms of trees and protecting them on behalf of the local community. The council basically points out that the regime introduced by the government will fail the intent of the legislation, which was designed to balance the conservation and protection of trees that provide important aesthetic and environmental benefits with appropriate development. That, in many ways, is at the heart of the dilemma. When there is conflict between large trees and development, must development always win?

The Adelaide Hills Council had a response to the question about arborists. When I posed the question about whether its planning officers were finding it more difficult to assess these applications without arborists' reports, the answer in short was, yes. It is considered paramount that at least the tree species be identified by a qualified arborist for the purposes of assessment. Without this piece of crucial information, staff may end up approving the removal of a rare or endangered species of tree. Staff consider that the legislation should be amended to include the requirement that an applicant engage a qualified arborist to identify a tree species as a minimum for the removal of any regulated tree.

I note that the cost of arborists' reports was one of the driving factors behind the changes that were made, but what the council is saying is that there is grave risk that people will simply get it wrong. I think it is a fair bet that most of us do not know with precision the actual species of trees that we are talking about. The City of Charles Sturt responded to the question about the exemptions by saying that trees that were previously required to be retained have been removed under this legislative change, and they give examples of trees that would have been protected that are now gone: Norfolk Island pine, peppercorn, lemon-scented gum. They go on:

...however, the numbers of trees impacted is unclear as we are only specifically aware of three examples.

The reason, of course, is that if a tree is removed pursuant to an exemption you do not have to tell anyone that that is what you are about to do or that that is, in fact, what you have just done. You just do it. The Gawler council, when asked whether applications had increased, said:

Since the release of the Regulated Tree Development Plan Amendment on interim operation...Council has experienced both a surge in the number of tree removal applications and difficulties with their assessment. This has resulted in a level of uncertainty within the community as well as increased costs for both Council and applicants.

They also go on to say, in response to the question of whether more trees are being removed now compared with previous years:

Yes, we have had a significant increase in the amount of trees removed. Large peppercorn trees, previously protected by Development Regulations, are now being removed.

The City of Holdfast Bay, in its response, makes a number of interesting points. In relation to whether the number of applications has increased, it says:

No. The number of development applications for the removal or pruning of once 'significant' trees is down 40 per cent compared to the same time in 2011. Most trees no longer require development approval for removal; the majority of trees in the urban environment are now exempt from statutory control.

Within that statement they are basically saying that fewer people are applying because they do not need to anymore: most trees are no longer protected. In terms of the impact of the exemptions, the City of Holdfast Bay says:

Anecdotal evidence suggests that trees which are exempt from assessment are being felled at a rapid rate.

The council also comments on the issue of whether it is worth listing trees individually. They are not proposing to do that because it is a cost-prohibitive process; it is effectively a census of big trees in a municipality and then listing them individually. Few councils thought they would go down that track. I refer to the Light Regional Council. In its response, it says that there has not been an increase in applications. It says:

...providing advice on whether a particular tree is a regulated or significant tree has become complicated now that the species of the tree is relevant.

It agrees with other councils that specialised expertise is required to confirm that a tree is, first, captured by the legislation and, then, that a development application is necessary. This is a common theme that is emerging. The City of Marion, in relation to exemptions, says:

Although the impact is not obvious, it is anticipated that a number of trees previously protected under the legislation have been removed over the past five months. Whilst the number of trees removed is not quantifiable (as applications are not required), Council staff frequently receive enquiries from residents seeking clarification of whether trees on their property are exempt due to species, and/or proximity to the dwelling. Council staff have advised a number of residents that [trees] on their property now fall within the exemption criteria.

So, many councils are doing the work that should rightly be the responsibility of applicants for tree removal. The City of Mitcham, in response to the impact of the exemptions, says:

There appears to have been a marked increase in the number of tree removals within the City of Mitcham as a result of the exemptions.

When asked, 'Are more trees being removed now than before?' the answer is:

Yes, but as stated above accurately quantifying this is impossible. In the longer term the loss of vegetation cover, which is primarily the EPBC Act listed Grey Box (Eucalyptus microcarpa) woodland, may be determinable through digital analysis of aerial imagery.

Councils have got to the point where presumably they have to use Google Earth or some other online satellite device to determine what is actually happening in their neighbourhood because the applications are no longer being lodged. The District Council of Mount Barker made a useful contribution as well. It says, 'The number of tree removals and pruning applications have nearly ceased altogether.' So no-one is applying in Mount Barker anymore. It says:

...this is largely due to the 20 metre exemption from development regulation. Since the proclamation of the new regulations there has been two development applications for tree removal outside 20 metres radius from a dwelling, [but] these were extremely low value trees...

They then go on to describe the trees. The council continues:

The act of requiring and assessing these applications seems inequitable and in a sense superfluous when many high value significant trees making an important long term contribution are being removed within 20 metres of township dwellings without requiring application and assessment.

The 20-metre rule of course refers to the rule in country townships which applies a fire standard for removal; so, 20 metres, rather than the 10 metres that applies in the city. A number of councils have said that that is not a sensible rule in the urban areas of those country townships. The City of Norwood, Payneham and St Peters says:

Since the regulations came into operation, the Council has experienced a decline of approximately 30% in the number of Applications lodged for Tree Damaging Activity...

It was assessing about 73 applications per year, but they have only had 20 so far this year. It says—and this is important:

Interestingly, at least one of the Applications received in 2012 was from an Applicant who had previously had an Application for the removal of a tree refused. I suspect this is likely to become a significant trend across the state.

In other words, people applied to have trees removed, they went through the process and it was found to be an unwarranted removal. They wait until the regs come in, and now they can just chop them down, either under regulation or, as this council describes, not being required to put in an arborist's report, which makes it very difficult for council staff. In fact, the City of Norwood, Payneham and St Peters say:

The absence of Arborist reports in support of Applications for the removal of Regulated Trees has certainly made the assessment of such Applications more cumbersome and time consuming.

The City of Onkaparinga outlines its top five concerns, which are as follows: firstly, the number of exemptions under the Development Act, and they say that those exemptions, notwithstanding the aesthetic contribution or the appropriateness of removal; secondly, restriction on requesting an independent arborist report; thirdly, the inadequacy of the prescribed monetary amount to be paid to an urban tree fund; fourthly, development plan policy that diminishes the level of protection for regulated trees, and; fifthly, the increased complexity of the legislative system for regulated and significant trees. You can see that there are clear themes emerging. I will go through a few more of the councils. The City of Playford, in relation to the arborists' reports, says that planners do not have expertise regarding trees. It also says:

...with some applications a stalemate is created because the assessing officer is not presented with evidence to support the removal of dying or diseased trees.

These were predictions that we made when the regulations were first introduced, and when the arborists' reports were made more difficult. It becomes a he-said/she-said: the owner says, 'Oh, it's diseased,' and the council, in the absence of an arborist's report, has very few ways to actually assess whether or not that is the case. On the impact of exemptions, the City of Playford says, 'Trees are being removed without formal identification.' When asked whether more trees are being removed, the council says:

Yes, due to the changes to legislation and by the increased failure by persons to seek consent from Council leading to an unknown amount of trees being removed.

In relation to the impact of the exemptions, the City of Port Adelaide Enfield says:

Council has received an increase in enquiries from the public wanting Council to identify the tree species. Also due to an increase in complaints from neighbours when a tree is being removed, Council is spending more resources going out to sites to ensure that the tree being removed is exempt under the new legislation.

I might say that one of the ideas I put to councils was whether people should not be allowed to rely on an exemption without first having given notice of intention to do so. I think that is a good solution, but ultimately it was not supported by sufficient councils, so I have not included it in my bill. The City of Prospect, the council that covers the Hon. Dennis Hood's dwelling place, as I understand it, says:

The new exemptions (due to tree species and/or proximity to dwellings or pools) have also had an impact, as we have seen an increase in the number of larger trees removed which previously would have required an approval prior...

The City of Salisbury says:

We are aware of a number of trees that have been removed since the introduction of the new exemptions that were healthy, notable trees that contributed significantly to their localities. We have seen significant confusion on the nature of the exemptions and in the methodology by which residents obtain information about the tree species, which has resulted in a high quantity of lengthy customer advice being given.

So, in many ways, rather than making the local council planning officers' lot easier by having fewer applications being required to be lodged, the council officers are as busy as ever trying to work out whether or not the exemptions are being genuinely applied. The Corporation of the Town of Walkerville says:

...the general trend in the Walkerville Township of late has been that large, notable trees have been cut down and removed from the landscape without the knowledge of Council. In many of these cases, Development Approval would ordinarily have been required were it not for the amended legislation.

Further, Council has consistently been made aware of the 'disappearance' of these trees by our residents, who have clearly conveyed their disappointment with the fact that approval is no longer required. While the relaxed provisions have certainly helped individuals to prune trees, remove trees and develop land with fewer or no constraints, they have also started to impact on the natural character of our Town and reduce the amenity value previously afforded to our streetscapes.

They are some of the responses that show the nature of the problem. When it comes to the solution, the bill I have put forward deals with three of the main problems. I have not dealt with all of them because I could not either find a model that worked or find sufficient support amongst councils, but these, I think, are the ones where there was a deal of consensus.

First, in relation to the 10-metre rule—in other words, the rule the says that, if the tree is within 10 metres of an existing dwelling or a swimming pool, it is exempt and it does not need approval—we need to deal with that rule as it is a very blunt tool for what should be a more considered process; secondly, the question of an arborist report and when it is required and, thirdly, the issue of maintenance pruning, the rules have loopholes in them that you could drive a truck through.

When you have a rule that says that you can prune 30 per cent of the canopy of a tree without getting approval but it does not tell you how often you can do it, you could effectively prune 30 per cent one month, 30 per cent the next month and then, in 3½ months, the whole tree is gone, although that is not quite true because the 30 per cent would be based on the remnant that was left. So, it would be the law of diminishing returns, but the tree is going to be diminishing at a pretty rapid rate if someone were to consecutively apply the 30-metre pruning rule. In relation to that rule, the City of Burnside says:

In relation to the suggested amendments in relation to the 10-metre rule, further value to the system could be added by amendments to the development plan which specifically seek that new development does not occur within five metres of a regulated or significant tree, or at least is only appropriate if it is demonstrated that the development will not affect the long-term health of the tree.

So that was one option, to go from a 10-metre rule to a 5-metre rule, and that is certainly an option the government has available to it when it reviews deregulation. I should say that the City of Burnside was overall very supportive of the options I have put forward in this bill. They say:

It is our view that the proposed measures outlined in your letter are positive and will together reduce the amount of tree removal and create a better system of control in relation to trees. The measures in relation to exempt trees are particularly meritorious, as they deal with long-held concerns about the validity of tree removals.

So, I am very grateful to the City of Burnside for their considered view. The City of Marion in relation to the 10-metre rule was supportive of it being reduced to five metres. There was one option that did not find its way into the bill but is still possible, and that is the idea that land management agreements could be used to manage trees that were within the exempt distance from a dwelling to make sure that they were not subsequently removed later on.

The City of Charles Sturt supported a lesser distance for exemptions. A number of councils supported removing the 10-metre rule altogether, and that is the approach that ultimately I have taken in this bill. In terms of the arborists' reports, the one response that I got from the City of Tea Tree Gully states:

The current legislation requires council to obtain its own technical report for regulated trees, the cost of which is borne by the wider community through rate revenue. Council is of the view that it is unreasonable to expect the community to fund this expense when the tree is located on private land. Council supports the recommendation that arborists' reports should be entirely funded by the owner of the tree.

So, that is a supportive submission, as well. The Town of Walkerville is supportive of the ability of councils to insist on a report, and they believe that that should be legislated in the first instance, which is what effectively I am doing here. The City of Charles Sturt, in relation to arborists' reports, says:

In the past, council staff have found that assessing the proposal to remove a tree was able to be undertaken with a more balanced review where the applicant provided an arborist's report and council then also sought similar advice. This allowed for two opinions on the matter, which assisted in reaching an appropriate level of robust analysis of how the proposal met the provisions of the development plan. This in turn gave greater certainty that the approach of council in deciding the application was balanced and valid.

Again, there are similar comments from Onkaparinga, where they say:

In relation to the issue of maintenance pruning we agree that the 30 per cent pruning clause should be altered to ensure the situation you have highlighted, 30 per cent removal each year over three years, does not occur.

The City of Port Adelaide Enfield basically agreed that there was a problem with the 30 per cent rule. The 30 per cent rule per se they did not disagree with, but they agreed that debate has arisen about how often a tree can be pruned, so that is really the issue that I have tried to address.

So, there we have it: a range of views from local councils that are supportive of the bill. When members look at the bill, they will see it is quite short. It has only five active clauses. One that I particularly draw members' attention to is clause 5 of the bill, which deals with the situation not where the tree is within 10 metres of a house, as at present, but where someone seeks to build a house within 10 metres of a tree.

Now, this is a matter that occupied a great deal of time in the Environment, Resources and Development Committee, and I grilled the bureaucrats at some length about whether they could guarantee that a tree would not be sentenced to death by the construction of an encroaching swimming pool or dwelling, and they could not give that guarantee. They suggested that it would be a joint application for tree damaging activity and rumpus room construction, for example, but there is no guarantee that that would happen.

In fact, if the tree in question were the other side of the fence, if in fact if it was the neighbour's tree, then there would be no need to even refer to it in the application; so, we do need to make sure that we do not see tree removal by the encroachment of buildings. Ultimately, what this balance is about is that, in the potential conflict between the built environment and the tree, must the tree always lose? The way in which the government has drafted the laws the tree has a greater likelihood of losing. This bill seeks to redress some of that balance. I commend it to members.

Debate adjourned on motion of Hon. T.J. Stephens.

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