Regulated Trees

This speech aims to get the regulations under the Development Act 1993 concerning regulated trees, made on 17 November 2011 and laid on the table of this council on 22 November 2011 disallowed.

The Hon. J.M.A. LENSINK (16:16): I move:

That the regulations under the Development Act 1993, concerning regulated trees, made on 17 November 2011 and laid on the table of this council on 22 November 2011, be disallowed.

We have been talking about gestational issues, so I think it is fair to say that this piece of legislation has had a fairly long gestation, and it is probably not over yet. By way of summary in relation to the head legislation that is the act, the Development (Regulated Trees) Amendment Bill passed parliament in late 2009. It was under the carriage of Family First and supported by the Australian Labor Party. It was opposed by the Liberal opposition, the Greens and the Democrats. Our major criticism of the bill at the time was that it continued to rely on the measure of girth size to determine if trees should be given particular protection, rather than other factors such as contribution to local amenity, biodiversity, value, height, historical significance and so forth. I admit that in saying that girth is an arbitrary size that that is something that was initiated under the former Liberal government, but I think time has moved on and there are other ways of valuing trees. The draft regulations to the act, which spelt out a lot of the details, were published by minister Paul Holloway in August 2010. At that time, there was widespread criticism, particularly from the local government sector and the arborists. New minister John Rau was appointed minister for development in early 2011 and I think it is fair to say that there has not been a lot of conversation or indication from that minister as to what his thinking was.

These regulations have landed on us recently. A number of honourable members have expressed concern. The Hon. Mark Parnell, the member for Fisher in another place, the member for Norwood and the Hon. Dennis Hood in this place have certainly been active in agitating for a sensible resolution to the way we manage trees. The regulations establish a two-tiered system of tree controls, such that significant trees are those which have a girth size of greater than three metres (currently, it is two metres), and an arborist's report will continue to be required to obtain council permission to remove one of those trees. For second tier regulated trees, which will have a girth size of greater than two metres or, in the case of multiple trunks, a circumference of two metres, with an average circumference of those individual trunks of 625 millimetres, no arborist's report is required but council permission is still required to remove them.

We still remain concerned that a large proportion of the legislation is reserved for the regulation, and that came out in the speeches in relation to the bill when it went through the parliament. We are concerned that the government can change those laws without full parliamentary oversight of many specific details of its operation. These concerns were certainly fulfilled when the draft regulations were published. We had the impression from minister Holloway's contributions in this place that qualitative criteria, such as visual amenity and the others I have mentioned, would be included in the regulations, but there is nothing about those whatsoever. I made a matter of interest speech on this matter in June this year because I was concerned that the issue was drifting and that the concerns that had been raised would not be taken into consideration. I have to say it is not that the government has not been given forewarning of the issues that people have been concerned with.

I wrote an email to the former minister's adviser in November last year and received replies in January, so all of those issues have been placed on the record as far as the minister's officers are concerned.

This year, the South Australian Society of Arboriculture (SASA) and the LGA have continued to be concerned about the regulations.

SASA, in particular, is concerned about the threat to the urban forest and the removal of lots of river red gums, particularly in Mount Barker.

Local government will largely be responsible for implementation of the legislation, yet they felt they were not adequately consulted at the time about the initial regulations. The major failure of the draft regulations which were published, in our view, was not to value the unique attributes of trees and I will not raise all of those issues—I have done that on the record in the past—but I would like to read some of the submissions on those draft regulations which I think are quite useful to inform us as to where we are going. I should say, too, that the government has seen fit to amend some of the regulations in the draft.

They really were a dog's breakfast when they came out, and there have been some improvements in them, but I think there are still some outstanding; and I am disappointed because the opportunity has been offered to engage in some active discussion about what aspects really could be improved.

I think the Hon. Mark Parnell may well cover this in his contribution: the bill hit the two-year mark, so I think this has all been done in a rush. We have had different ministers overseeing it and they have really dropped the ball. The SASA submission stated that the draft regulations are not considered to be appropriate in effectively managing the urban tree population in metropolitan Adelaide.

They support the inclusion of a definition of a regulated tree, but they believe that the three-metre circumference is too large for a single-stemmed tree and that this figure should be 2.5 metres, in line with the original regulations.

The step between two metres for a regulated tree and three metres for a significant tree is too large a gap. For multi-stemmed trees the three-metre total circumference should be retained. They agree with the principles behind measurement of multiple trunks.

They state:

The 10-metre measurement between trees and dwellings/pools is too prescriptive and would involve removal of many trees unnecessarily on the majority of existing allotments. When reducing allotment sizes is taken into account, this regulation would result in the removal of the majority of trees the Act was initially intended to protect. The removal of trees should be assessed on the individual circumstances at each site. In some cases, this regulation may conflict with the tree protection zones applied under [Australian Standard] 4970-2009 [entitled] Protection of trees on development sites. Councils may elect to increase the distance between trees and swimming pools or other structures in order to preserve the tree. This may then have the effect of preventing urban consolidation where it otherwise might occur.

In relation to regulation 6A(5)(a) and (b), they say the use of species lists should be avoided, for a range of reasons.

Personally, I disagree because I think some guidance would be useful. They say that species can be incorrectly identified, which is true, but one of the other submissions that I will refer to gives a solution to that. They say that all trees should be assessed on their individual merits and that the list, as it currently stands, is full of errors and is fundamentally flawed. Pruning is one of the areas about which a lot of concern was expressed. The original regulations said that 30 per cent was acceptable, and that is something I put to the minister in my email of November last year. I asked what the basis was for using that definition, and the reply that came back was that many metropolitan councils had a policy that pruning of less than 10 per cent of a tree was regarded as maintenance pruning, that some did not have a policy, and that others determined the issue of maintenance pruning on a case-by-case basis, and that the regulation to define a set figure aimed to ensure there was a consistent approach across all councils. I think there is another solution, which I will also refer to.

In fact, it is in this SASA submission, which states that the proposed regulation of the draft is too prescriptive. They ask how you define 30 per cent, and suggest that it should refer to Australian Standard 4373-2007, entitled Pruning of Amenity Trees, which says, at 7.2.1:

Crown maintenance is pruning according to the growth habit of the tree. It includes dead wooding, crown thinning, selective pruning and formative pruning...

It does not reduce the volume of the crown and retains the structure and size of the tree. I think the government has made some improvements to that, but I think it is worth examining, and certainly worth getting input from the stakeholders who are experts in this to determine whether the government has got it right yet.

SASA also said that qualifications for an expert or technical report being set at level 3 was too low, and I note that the government has amended that to level 5, which is to be commended.

The LGA's submission, dated 2 December 2010, can be obtained from their website. Regarding the proposed trunk size of regulated and significant trees, the LGA said that 'the LGA understands that the number of trees in many council areas that would fall within this category is minimal'. So I think they are also reflecting the view that SASA expressed, that there would be a threat to the urban forest, in that the three-metre size is too high and would not provide protection for very many trees. They also say that the definition of a significant tree with multiple trunks is confusing, and they agree with SASA that significant trees should be amended from three metres to 2.5 metres for a single trunk and that three metres is appropriate for multiple trunks. They say that the 10-metre rule for existing dwellings and pools may result in:

...unnecessary and unwarranted removal of trees on existing allotments, and could be further exacerbated by the push for urban consolidation under the Plan for Greater Adelaide. The 10 metre threshold also seems to be an arbitrary distance...

that 10 metres is not an appropriate benchmark for exemption from the definition

...and...a lesser threshold needs to be considered.

They also say that the meaning of 'dwelling' is ambiguous. The LGA also has a go at the issue of pruning, saying that 30 per cent is unworkable in practice:

Councils cannot regulate the activity if details are not provided prior to pruning taking place.

The 30 per cent threshold appears to be an arbitrary number and does not comply with [the] current Australian Standard. They also have issue with the amount of the fee to be paid into the Urban Tree Fund, which was $50 in the draft and which is now $75—whoopy do! They say this amount is considered to be:

...a significant undervaluation and not indicative of actual costs as it would be insufficient to fund appropriate replanting schemes and associated tree protection measures. A low figure such as proposed would limit a council's ability to maintain numbers of trees to be replanted and their diversity.

In relation to variations of schedule 3, which relate to the removal of trees in bushfire-prone areas, the LGA has been advised that 'in some situations trees with high canopies can assist in directing the bushfire flow to proceed over a dwelling thus avoiding possible direct flame contact with the dwelling'.

Dean Nicolle, the chap I referred to in my matter of interest in June, wrote quite a detailed submission, which I obtained under FOI. I think some of his concerns have been taken into consideration, particularly in relation to subregulation (5)(a), which I was told by the minister's office is a list of common natives requiring approval to be removed if within 10 metres. I was told that a lot of submissions were received on this particular aspect. Most of the species that Dean Nicolle wrote to the government about (and I will not use their botanical names) have been removed, which is pleasing, and include:

cedar wattle, swamp she-oak, lemon-scented gums and bracelet honey-myrtles.

The eucalyptus remains as a species on the list, and I think there is reason to be concerned about this because these are not all indigenous to South Australia. I refer to Mr Nicolle's submission where he states:

The five species and one genus listed in Subregulation 5a [this refers to the draft regs] are only a very small sample of trees species which occur or are grown in Adelaide and are capable of reaching a trunk circumference of greater than two metres.

The exclusion of numerous other species (many of which are generally safer and less problematic than the listed species) is perplexing. Such other species include locally indigenous genera such as she-oaks, banksias, native cypress pines, exotic but Australian native genera such as native apples, kurrajongs, bull oaks and overseas exotic genera, including cedars, oaks and elms. The part where he refers to eucalyptus states:

The inclusion of eucalyptus, any species of the genus in subregulation 5a, is problematic as a number of eucalyptus species are poorly suited to urban environments in the greater metropolitan Adelaide area, most notably the commonly planted but exotic species Tasmanian blue gum and flooded gum, as well as a number of other less commonly planted eucalyptus species.

He goes on to say:

Subregulation 5a implies that most species of trees (i.e. all except those listed) within 10 metres of a dwelling or swimming pool are likely to represent an unacceptable risk to safety or property, while those beyond 10 metres are not—this assumption is erroneous and is not supported by any data or studies. In many cases a tree may represent a lower risk to safety if it is overhanging a dwelling rather than overhanging open space. A tree should be assessed on its merits and removed if it represents an unacceptable risk to safety or property, regardless of the distance between the tree and the nearest dwelling or swimming pool.

There is another species list, (5)(b), and Mr Nicolle says that a number of species should be omitted from this list. It is a list of common trees considered problematic because of limb drop or infrastructure damage they may cause. Mr Nicolle says:

A number of species listed in [this subregulation] should be omitted as they are well suited to urban environments in the Adelaide metropolitan area and they are generally low risk and non-problematic...

He recommends the following species not listed in subregulation (5)(b)—that is, camphor laurel, figs, London plane, Lombardy poplars and peppercorn trees—as well as being amongst the best large trees for urban environments in Adelaide are often linked to heritage sites and should not be listed for this reason.

He then goes on to say that a number of species should be added to the list because they are poorly suited to urban environments in metropolitan Adelaide and/or they very commonly represent an unacceptable risk to safety and/or to property. I will not read all of those for the sake of time. He then goes on to say—and this is the point SASA makes as well in relation to identification of species:

Due to such difficulties in the species identification of a tree, confirmation from an appropriately qualified or experienced expert and/or council staff would be useful to confirm the species of the tree.

His summation is that there is substantial amendment of (5)(b), which the government has not touched, as far as I can tell from comparing the two sets of regulations. He also seeks further clarity on the 10-metre rule, saying that we need to know what part of the dwelling or swimming pool from which to take a measurement and also to clarify what a dwelling is. Is it a wall, carport, veranda or deck, etc.? He also has a go at the issue of pruning. Rather than state a percentage amount, he says, which is open to unintended mismanagement of trees and intentional tree-damaging activities, he makes a suggested alternative to that as well. His final point is about dead trees, and there would be varying views about this, I am sure. He says:

Although the definition of a 'dead' tree may initially seem straightforward, I often inspect trees that have been described to me as dead but which are certainly alive and, in some cases, healthy and sound.

He goes on to say:

Due to such difficulties in the determination of a 'dead tree', confirmation from an appropriately qualified or experienced expert and/or council staff would be useful to confirm if a tree is in fact dead...

In some cases, a dead tree can represent an acceptable risk to safety and to property and provide high value habitat in the form of avian hollows. In the Adelaide metropolitan area such trees are limited to certain indigenous eucalyptus species...

He includes in this river red gum, mountain white gum, pink gum, South Australian blue gum, grey box, peppermint box and manna gum. He goes on to say that he recommends that regulation 17(1)(d) be deleted. The government is to be commended for having shifted from the dog's breakfast and making some amendments, but I think that there are some aspects the government has left out altogether or not really taken far enough, and I think that further improvements can be made. I will have a briefing with the minister's office, but I do urge them to take some of those considerations on board, which I think, for whatever reason, they have chosen to ignore. I commend the motion to the house.

Debate adjourned on motion of Hon. J.M. Gazzola.