Law Reform and Significant Trees – Private Members Bill

Former Liberal MP Sam Duluk last month introduced proposed amendment legislation – the Planning, Development and Infrastructure (Exceptional Trees Register) Amendment Bill 2021 (Bill) – which attempts to overhaul the significant tree provisions of the Planning, Development and Infrastructure Act 2016 (PDI Act).

The Bill seeks to remove the concept of significant trees under the PDI Act and instead replace these provisions with a new regime concerned with “exceptional trees”. Regulated trees that are not significant trees are proposed to remain untouched by the Bill.

The Bill, if passed, will have significant implications for the way in which trees are protected under the PDI Act, arguably diminishing the existing protections afforded to significant trees, and will place new administrative burdens on the State Planning Commission (Commission) and councils.

The Bill is available to read here. As at the date of this article, it has not progressed to second reading.

Background

The Bill appears to be based around issues such as urban canopy loss and the perceived failures of the current legislative regime to adequately preserve trees on private land.

According to the first reading speech, the Bill will promote the retention of trees by creating a new concept of “exceptional trees” that will sit exclusively within the PDI Act.

This is to address a perceived shortfall in that many of the regulated and significant tree provisions sit within the Planning, Development and Infrastructure (General) Regulations 2017 (General Regulations) rather than the PDI Act.

The approach taken in the Bill appears to be based on a misunderstanding of how the existing legislation applies with respect to trees that are designated as significant trees under the Planning and Design Code (Code) (pursuant to Section 68 of the PDI Act), and those that are prescribed by the General Regulations. Significant trees under Part 10 of the Code are not subject to the same exemptions as those prescribed by the General Regulations.

The Bill further appears to draw inspiration from aspects of Victorian planning policy where councils may elect to keep a register of trees deemed “exceptional” for the purposes of preservation and conservation (such an example being the City of Melbourne exceptional tree register). Many of those policy considerations are sought to be adopted within the proposed legislative provisions of the Bill.

Exceptional Trees

Under the Bill, an exceptional tree is proposed to be defined as any tree, or a tree within a stand of trees, on the exceptional tree register (whether or not the tree is also declared to be a regulated tree, or falls within a class of trees declared to be regulated trees, by the General Regulations).

The intention appears to be that exceptional trees cannot be declared by regulation,[1] and only those trees on the exceptional tree register will be exceptional trees for the purposes of the legislation.

Exceptional Trees Register

The Bill seeks to repeal the existing Section 68 of the PDI Act and replace it with a provision for the establishment of an exceptional trees register.

The Bill mandates that the Commission must establish a register of exceptional trees containing details of the location of the tree or trees, a brief description of the tree or trees, and a statement of the reason that the tree or stand of trees is exceptional (with reference to vague criteria).

The register would be required to be updated on at least a monthly basis. Councils are also mandated to provide the Commission with a list of exceptional trees and stands of exceptional trees within their area at least once a month.

While the creation and maintenance of the register is couched in mandatory terms, the requirements for inclusion of exceptional trees appear to be discretionary. These criteria for inclusion are numerous and vague, including trees of “outstanding age”, “outstanding in height, circumference or canopy spread”, and “outstanding aesthetic significance”.[2]

It is unclear whether exceptional trees included in the register are to be nominated by the Commission alone or if they can be nominated by councils or private individuals. It is also unclear whether inclusion of a tree or stand of trees on the register will be a form of Code amendment (subject to the requirements of Part 5 Division 2 of the PDI Act), as the proposed provision states only that the Code is “taken to incorporate the register as in force from time to time”.[3]

Development involving Exceptional Trees

A new section 135A is proposed to further protect exceptional trees through the imposition of a uniform tree protection zone for all exceptional trees.

If development were to be proposed on a site with an exceptional tree, or within 10 metres of an exceptional tree (presumably on an adjacent neighbouring property), an applicant would be required to pay a security bond to the council in whose area the land is situated. The amount for the bond is proposed to be calculated by taking into account vague concepts such as “basic value, species, aesthetics, locality and condition of the tree”.

The bond is to be repaid as soon as reasonably practicable after a date “specified in the development approval”. However, if an “unapproved tree-damaging activity” is undertaken then the council must pay the bond into an urban trees fund (if it maintains one) or otherwise to the open space fund established pursuant to section 198 of the PDI Act.

An unapproved tree-damaging activity is proposed to be defined as “a tree-damaging activity that has not been granted development approval or is not otherwise permitted under the Act.”

It is likely that the vague and uncertain metrics by which a bond is to be calculated under this provision would be subject to objection and appeal by applicants, and would result in significant resource and administrative burdens being placed on councils.

Implications

There are genuine issues with the regulated and significant tree regime as it currently exists under the PDI Act and it is undeniably an area where reform is desirable. The concerns that the Bill seeks to address in this respect are valid. However, the approach taken under the Bill is piecemeal and would, in a worst-case scenario, only exacerbate the issues with the current regime, rather than offer meaningful reform.

If reform in this area is to occur, it is desirable that it be considered and comprehensive, taking into account the whole legislative regime under the PDI Act, the General Regulations, and the Code policy.

Councils are encouraged to remain alert to any proposed legislative amendments that would create additional administrative and resource burdens, or would otherwise cloud already complex areas of law relevant to the performance of their statutory duties.

For more specific information on any of the material contained in this article please contact Gavin Leydon on +61 8 8210 1225 or gleydon@normans.com.au, or Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au.

[1] Although criteria for inclusion of trees on the register may be set by regulation pursuant to clause 68(2)(l).

[2] Clause 68(2).

[3] Clause 68(8).