Iconic trees: The Case For the Defence

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Written by: Ed Scull OAM

The “Laws” protecting trees vary widely across Australia but with the general theme that enabling legislation by the State or Territory supports planning schemes at the local government or council level to control land use and vegetation management.

In Western Australia, registers of “significant trees” and regulations for the management of vegetation such as “tree preservation orders” can be identified by local councils which are enabled through the Planning and Development Act (Part 5).

While the Act does not refer specifically to “significant trees” it was reported (2012) that councils in WA appear to use significant tree registers for which the relevant criteria vary widely between councils.

Such criteria tend to be subjective in nature (eg. referring to “a tree that is outstanding for its height, trunk circumference or canopy spread” or “a tree that is in a prominent location or context” or “trees that contribute significantly to the landscape”) and as such, would be difficult to apply without conjecture and the probable recourse to law in order to establish precedent upon which to act in defence of the environment. Is there an alternative?

The ACT Tree Protection Act

The Australian Capital Territory (ACT) Tree Protection Act 2005 is notable, based on a 100 page tree-specific legislation. The ACT identifies trees worthy of protection under two criteria:

Registered Trees that have been placed on the register as a result of being identified as having individual importance, and
Regulated Trees which meet certain criteria and which are located in designated “Tree Management Precincts”.

The criteria include height (12 plus metres high), girth (trunk(s) circumference of 1.5 metres plus at 1 metre above the ground) and a canopy of 12 metre or more wide.

Trees which fall into one or more of these categories cannot be damaged without approval, with damage being defined as any action that reduces the life expectancy of the tree or which significantly and adversely affects its health.

Significantly, under the Act, ground work conducted within the “tree protection zone” is not permitted without approval; the zone being defined as under the canopy of the tree, within a two metre radius out from the canopy or within a 4 metre radius from the trunk at 1 metre above the ground level or as otherwise defined by a tree management plan for that tree.

Penalties (2012) range up to $44,000 and $220,000 for individuals and corporate bodies respectively.

The SA Act also provides for remediation which requires two trees to be planted for removal of a regulated tree or three, in the case of a significant tree.

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SA Planning, Development & Infrastructure Act

Also worthy of scrutiny is the South Australia (SA) Planning, Development and Infrastructure Act 2016 which requires that any activity that damages a “regulated” or “significant” tree is regarded to be development that requires prior approval.

The SA Planning and Design Code defines a regulated tree as one with a trunk(s) circumference of 2 metres or more, measured at 1 metre above ground. Two metres circumference is approximately 640mm diameter. A significant tree is a regulated tree with a 3 metre circumference.

Approval for other than defined pruning (eg, removal or destruction) requires advice through an “expert or technical report” issued by an authority with minimum Level 4 Certification in Horticulture (Aboriculture).

The SA Act also provides for remediation which requires two trees to be planted for removal of a regulated tree or three, in the case of a significant tree.

Alternatively, $75 per tree removed can be paid into the Local Council’s Urban Tree Fund to be applied for planting trees destined to become significant or to purchase land for the purpose of planting such trees.

Whether this is a disincentive for corporate entities and/or government authorities to engage in the expedient removal of trees is problematic. If a tree is recognised as a significant tree in Part 10 of the SA Planning and Design Code, development approval is required before it can be substantially pruned, killed or removed. Failure to obtain approval can result in a fine of up to $120,000 and can apply to both the tree owner and affected “neighbours”.

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The National Trust of Australia continues to play a pivotal role in the creation of “a national register of significant trees, consistent with its mission to protect and celebrate Australia’s heritage”. While not a regulator in its own right, the work of the Trust underpins and supports many of the regulations and guidelines used by the States, Territories and Local Government.

If trees of importance in WA are to be effectively defended against expedient removal and/or significant and unwarranted damage, is it time for a more specific set of regulations that guide future development and protect the tree as a valuable community asset.

We could do worse than adopt the ACT or SA statutes that define a “regulated” and a “significant” tree and to set our sights on protecting iconic trees with a circumference in excess of 1.5 metres. Approval to act against the statute should require expert investigation by an independent authority with the default intent of protecting and retaining the tree where at all possible.

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