Page 3337 - Week 11 - Tuesday, 20 September 2005

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There are considerable problems with the whole thing. One of the things that you cannot do in accordance with the legislation is undertake prohibited groundwork. The concept of what constitutes prohibited groundwork has undergone some clarification between the 2004 bill and the 2005 bill, but it is still exceedingly cumbersome. It is really the blackest letter of command and control regulation. There are a whole lot of tests that you may do. It is not possible to excavate to a depth of greater than 10 centimetres over a one square metre or larger area or to raise the soil level by 10 centimetres over the natural soil level over an area of four square metres or larger. These are very draconian, prohibitive, black letter provisions. Surely it is not beyond the ken of good legislators and good implementers of legislation to come up with tests that are much more effective.

Why is not adverse effect on the health of the tree a more sensible test? That would allow landowners to perform sensible work around a tree on their property. An instance was brought to my attention the other day of someone wanting to build a raised deck, with gaps between the slats, that impinged upon the drip zone of a tree. The authorities have said that this cannot happen because the deck might stop some of the water attaching to the drip zone, even though there would be gaps between the slats, and that putting in a little footing to hold up the deck would be unauthorised groundwork. That is clearly in the great scheme of things, in the great scheme of the health of the tree, absolutely risible and there is no test about whether this would affect the health of the tree.

There is a range of provisions that allow the Conservator of Fauna and Flora to determine guidelines for tree management plans for registered or important trees. People are therefore allowed, under this legislation, to do prohibited groundwork, but only if they can get the conservator on side. One of the really important issues here is that, under this legislation, anyone can apply for a tree management plan on any tree in a built-up area. I might live in Evatt and say that there is a tree down there in Gordon or somewhere else that I think is really important and I can apply to the conservator for a tree management plan on that without any inference as to whether I have an interest, a property right or any of those things, so that there is no scope for limiting vexatious activities that would stop people developing on their blocks.

A tree register is being established by this legislation. Although the interim scheme has been in operation for nearly five years, very little work has been done on what goes into the register and what does not. There is a range of provisions relating to reviewing decisions that I find quite remarkable. Clause 103 says that the conservator can internally review some decisions relating to the approved activities of a tree management plan. The real problem is that the conservator approves the tree management plan, so that in this legislation you have the conservator internally reviewing his or her own decisions and you cannot go to the AAT before there is an internal review on some of these decisions.

One of the things that I will address under the amendments is that all the disallowable instruments in previous legislation are now notifiable instruments. No reason has been given, except when I had a briefing on this legislation I was told by the staff that this was a decision by the minister, which really roughly translates as, “Now we are in majority government, I do not have to negotiate with anybody and therefore I will not have anything in a disallowable instrument; I will do what I like.” That is, the Minister for the Environment is holding the parliament in contempt once again.

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