Neighbourhood Tree Disputes: Report (html)

8. VCAT decision-making principles and expert evidence in neighbourhood tree disputes

Introduction

8.1 This chapter makes recommendations about the decision-making principles that should be contained in the new Act. Decision-making principles in Victorian planning schemes, local laws and interstate Acts are examined as well as community views about the matters a decision maker should consider in tree disputes.

8.2 This chapter also makes recommendations about the use of expert evidence to help the Victorian Civil and Administrative Tribunal (VCAT) in its decision-making process. It includes recommendations about who should give expert evidence, what qualifications they should have, and the format of their evidence.

Decision-making principles

8.3 A range of existing laws and regulations are relevant to the rights and responsibilities of parties in tree disputes. They contain decision-making principles that assist decision makers to decide in what circumstances trees on private land may be pruned or removed. These principles have informed the Commission’s recommendations in this chapter.

Decision-making guidelines in planning schemes

8.4 The Planning and Environment Act 1987 (Vic) provides the framework for Victoria’s planning system. If a regular planning permit process applies and vegetation on private land is protected by a Significant Landscape Overlay,^[1] the Environmental Significance Overlay,^[2] the Vegetation Protection Overlay,^[3] the Heritage Overlay,^[4] the Bushfire Management Overlay^[5] or the Native Vegetation Particular Provisions,^[6] standard decision guidelines apply for each of these overlays.^[7] These guidelines outline principles that the relevant authority must consider before granting a permit. For example, the decision guidelines for the Vegetation Protection Overlay require the decision maker to consider, among other things:

• the effect of the proposed use, building, works or subdivision on the nature and type of vegetation to be protected

• the role of native vegetation in conserving flora and fauna

• the need to retain native or other vegetation if it is rare, supports rare species of flora or fauna or forms part of a wildlife corridor

• the need to retain vegetation which prevents or limits adverse effects on ground water recharge

• whether provision is made or is to be made to establish and maintain vegetation elsewhere on the land

• the need to retain vegetation which is of heritage or cultural significance

• any other matters specified in a schedule to this overlay.

Planning scheme schedules

8.5 Councils may add local content to planning schemes through schedules.^[8] These schedules may modify the state wide decision-making principles in the Victoria Planning Provisions (VPPs).

8.6 The East Gippsland Shire has eight local schedules to the Vegetation Protection Overlay which outline the nature and significance of the vegetation to be protected as well as additional decision-making guidelines to those contained within the standard overlay clause.^[9] Schedule 8 is the Mallacoota Vegetation Protection Area.^[10] It seeks to protect vegetation of high conservation value and vegetation with high aesthetic and landscape value within built-up areas around the township of Mallacoota. Before deciding on an application, in addition to the decision guidelines in clause 42.02-5, the responsible authority must consider, as appropriate:

• the extent to which the vegetation sought to be removed or cleared contributes towards the need to:

– conserve and enhance areas of high conservation value vegetation, as determined by the Draft East Gippsland Native Vegetation Plan

– conserve and enhance fauna habitat and habitat corridors

– protect and enhance the visual amenity and landscape quality of the area

– minimise the risk of soil erosion, sedimentation and degradation of water quality

• the need to work towards the Victorian Government’s policy of achieving a net gain in the extent and quality of native vegetation throughout Victoria

• whether there are other options regarding the removal of vegetation, to better achieve the overlay objectives

• whether there is a need to undertake revegetation with appropriate indigenous species to offset any loss of environmental values resulting from the works or development, or to replace key non-indigenous vegetation where this is important to the aesthetic values of a particular site

• whether the vegetation is planted vegetation that blocks views from adjoining properties.^[11]

8.7 Decision-making principles in the planning schemes reflect the broader policy considerations that underpin the planning scheme framework in Victoria. Not all of them will be relevant in the context of tree disputes but where they are it will be important that they continue to be considered by VCAT under the new Act. Relevant recommendations can also be found in Chapter 10.

Local laws

8.8 Some councils have local laws to protect trees on private and public land. The Commission consulted with two councils who have enacted local laws to protect trees on private land.^[12] The decision-making process applied by councils provides another useful insight into the types of issue that may need to be considered by VCAT under the new Act. Some of these considerations are similar to those in planning schemes. Local laws are also discussed in detail in Chapter 10.

City of Boroondara

8.9 The City of Boroondara in the eastern suburbs of Melbourne includes established leafy suburbs alongside the Yarra River.^[13] The City of Boroondara Tree Protection Local Law 2016 was enacted to:

• ensure that the established treed character of the municipal district is maintained

• prohibit, regulate and control any activities which may endanger Significant Trees and canopy trees within the municipal district.^[14]

8.10 The Boroondara Local Law sets out detailed decision-making criteria that council must apply, to the extent it considers appropriate, when determining permit applications for works to protected trees:

• the effect of the proposed action on the aesthetics of the neighbourhood

• whether the tree is a significant tree

• the condition of the tree (health and structural integrity)

• the appropriateness of the tree for its location on the property having regard to the existing buildings and conditions on the property

• whether the proposed action is to be undertaken for reasons of health or safety

• whether the tree is causing any unreasonable property damage

• whether the tree is causing any unreasonable public nuisance or creating any unreasonable nuisance to private property owners or occupiers

• whether the tree is a recognised weed

• zoning under the Boroondara Planning Scheme

• any legislative requirements

• any other relevant matter.^[15]

8.11 The decision-making principles are intended to produce a decision that is ‘holistic and balanced’.^[16]

8.12 Boroondara supports the principle that if the tree existed prior to occupation or development, it should generally not be disturbed or removed in favour of newer structures.^[17] However, each application still needs to be assessed on its merits having regard to evidence.^[18]

8.13 If a permit to remove vegetation is granted under local law, Council may also require replanting to offset any net loss of vegetation.^[19]

City of Port Phillip

8.14 The City of Port Phillip Local Law No 1 (Community Amenity) 2013 protects significant trees.^[20] Council advised the Commission that the local law applies to and protects a large number of trees within the municipality.^[21] A permit is required to carry out works or allow works to a significant tree or palm.^[22]

8.15 In eciding whether to grant a permit Council must have regard to:

• whether an arborist’s report is needed

• whether the tree is included on any register

• the reasons for the permit request

• the impact on the amenity and the safety of the area

• any proposed replacement plantings

• any other matter considered relevant by council.^[23]

Decision-making principles in other jurisdictions

8.16 The New South Wales, Queensland and Tasmanian Acts require the decision makers to consider certain matters before determining an application.^[24] The New South Wales Land and Environment Court informed the Commission the decision maker does not need to address every decision-making principle in its decision even though it is mandatory to consider each one, because some principles may be irrelevant in the particular circumstances.^[25] In Tasmania, decision makers must consider these principles but only to the extent that they are relevant.^[26]

8.17 Principles to be considered which are common to all three Acts include:^[27]

• the location of the tree in relation to the boundary or other structures on the land

• whether consent or authorisation would ordinarily be required under local laws and Acts, and whether that consent has been obtained

• whether the tree has any historical, cultural, social or scientific value

• any contribution the tree makes to the local ecosystem and biodiversity

• any contribution the tree makes to public amenity

• any contribution the tree makes to the natural landscape, garden design, privacy and protection from natural elements.

• the impact of works such as pruning (including maintaining the tree at a particular height, width or shape) to the health of the tree

• any impact of the tree on soil stability, water table or other natural features of the land or locality

• the type of tree and whether it is native, protected or considered a pest

• such other matters that the decision maker considers relevant in the circumstances of the case

• any risk associated with the tree due to seasonal changes and extreme weather events.^[28]

8.18 If the applicant’s allegations relate to the tree causing damage to property or harm, additional decision-making considerations apply in the interstate Acts. These include:

• anything other than the tree that may have contributed to the damage or harm, including any act or omission by the applicant

• any steps taken by the applicant or the owner of the land to prevent or rectify the damage or harm.^[29]

8.19 The Queensland and Tasmanian Acts further specify that the decision maker may consider additional principles where an order could involve destroying a tree or plant.^[30]

New South Wales

8.20 The NSWLEC advised that the decision-making principles underpinning the NSW Act are sufficient and cover a broad range of issues such as the social, public amenity and environmental value of trees.^[31] The Court also identified that the decision-making principles in the NSW Act reflect the public policy position that trees are beneficial to the community and that people wish to live among trees.^[32]

8.21 New South Wales has an annotated version of its Act outlining how some of the decision-making principles have been applied to particular cases.^[33] Of particular note is section 12(h) of the Act, which requires the court to consider whether anything other than the tree in question may have contributed to the damage, or likelihood of damage or injury, and the steps taken by both the affected neighbour and the owner or occupier of land on which the tree is situated to prevent such damage or injury.^[34] This decision-making principle enables the court to consider any past actions or omissions of both parties, including any development on land that occurred subsequent to the tree’s existence.

8.22 Under this provision of the NSW Act, the NSWLEC has adopted a tree dispute principle: ‘the tree was there first’:^[35]

The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration.

If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work.

However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of:

• the type of tree planted; and

• the suitability of the location in which it has been planted.

Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.^[36]

8.23 In other cases the Court has ordered that the costs of rectifying the damage caused by a tree should be shared equally by both parties.^[37] For example, in O’Connell v Gallagher^[38] it was held that because the affected neighbours had not made any effort to remedy the damage which had been developing over a number of years, the costs to rectify it should be equally shared between the parties.^[39]

8.24 Steps taken by tree owners to address potential problems have also been taken into account by the Court. For example in Nolan v Psaltis^[40] the owner of land had installed root barriers along the fence and regularly pruned the tree to prevent damage or injury to neighbours. It was determined that the installation of the root barrier had reduced the growth of the tree rendering it less likely to cause damage or injury and that the tree should not be removed.^[41]

Queensland

8.25 The Queensland Act sets out mandatory decision-making criteria that largely replicate the approach in the NSW Act. Queensland’s vulnerability to cyclones any other extreme weather events is an additional consideration.^[42]

8.26 The Queensland Act also provides additional principles that may be considered by the decision maker in specific situations —where serious injury, damage or unreasonable interference are alleged or where a tree is ordered to be destroyed under section 66.^[43] For example, in making an order to carry out work that involves destroying a tree, Queensland Civil and Administrative Tribunal may consider:

• how long the neighbour has known of the injury or damage

• any steps that have been taken by the tree-keeper or the neighbour to prevent further injury or damage

• anything other than the tree that may have caused or contributed to some or all of the injury or damage

• any other matters QCAT considers relevant.^[44]

8.27 Another key difference between the NSW and Queensland legislation is that the Queensland Act sets out the responsibilities of tree owners.^[45] QCAT confirmed that the tree owner’s responsibilities under the Queensland Act are mirrored in the principles QCAT takes into account when making decisions.^[46]

8.28 Under the Queensland Act, the primary consideration is the safety of any individual.^[47] However, in an attempt to counteract any presumption about the removal of trees in the interest of safety, section 72 of the Act provides that a living tree should not be removed or destroyed unless there is no other satisfactory means to resolve the issue.^[48] Further, one of the decision-making principles relating to substantial, ongoing and unreasonable interference is whether the tree existed before the neighbour acquired the land.^[49]

8.29 In response to community suggestions on the statutory review of the Queensland Act the Queensland Law Reform Commission (QLRC) recommended that QCAT must consider whether the tree is interfering with the use and enjoyment of the neighbour’s land.^[50] While the QLRC accepted that the actions of neighbours are relevant in some cases, it did not recommend the elevation of this consideration to a mandatory decision-making criteria.^[51]

Tasmania

8.30 The Tasmanian Act largely replicates the Queensland Act by having a list of general matters that must, to the extent that they are relevant to the application, be considered by the Resource Management and Planning Appeal Tribunal (RMPAT).^[52] The Act also contains additional matters that RMPAT may consider if an application relates to an alleged threat of serious injury or damage.^[53] These additional principles largely mirror those in New South Wales and Queensland.

8.31 If RMPAT is considering an order that involves destroying a plant, RMPAT may consider additional principles akin to the Queensland Act, for example how long the neighbour has known of the injury or damage.^[54]

8.32 RMPAT may also consider additional matters if unreasonable interference is alleged by the applicant.^[55] One of these considerations is whether the plant existed before the applicant owned the affected land.^[56]

Community responses—decision-making principles

8.33 There was strong community support for including decision-making principles in the new Act.^[57] VCAT supported the idea of including a non-exhaustive list of decision-making guidelines in the new Act, as long as this list was not overly prescriptive. VCAT noted that a list of decision-making guidelines would also assist and guide experts drafting reports for tree dispute hearings.^[58]

8.34 The Commission received a number of suggestions about what kinds of principles should be taken into account by the decision maker determining tree disputes. Several submissions stated that the decision-making principles contained in interstate statutory schemes would be appropriate for a new statutory scheme in Victoria.^[59]

8.35 The majority of responses related to the following themes:

• protecting the community from harm or damage.

• consideration of the benefits provided by the tree to the broader community, and balancing that against any harm it causes

• the ‘first in time’ principle—whether the tree existed before the affected neighbour began to occupy the land affected by the tree

• past actions of the parties that may have contributed to the dispute

8.36 These themes are discussed in the following paragraphs.

Protecting the community from harm or damage

8.37 Some community members emphasised that physical well-being should be a primary consideration under the new Act.^[60] This view was supported by Baw Baw Shire Council.^[61]

8.38 The Commission received a handful of responses about whether the decision maker should give greater weight to particular decision-making principles. Arborist Dr Karen Smith stated:

The highest weight should be always determined based on a risk assessment. It is no good saying heritage or conservation value should take precedence, if the risk cannot be mitigated or managed.^[62]

8.39 ENSPEC noted that ‘management of unreasonable risk is appropriate; however, the elimination of all risk from any cause, including trees, is not practical’.^[63]

The broader benefits of trees

8.40 Trees are increasingly viewed as community assets.^[64] Several responses to the Commission emphasised the need for the decision maker to consider any benefits the tree provides to the broader community.^[65] Arborist Dr Karen Smith expressed the view that one of the aims of new laws should be to ‘bring the law up to date with community views and expectations where possible’.^[66] Another arborist, Mr Kenyon, explained that the community’s knowledge, appreciation for and expectations of trees and urban forests have changed considerably over the past decades.^[67]

8.41 Acting Commissioner David Galwey of the NSWLEC stated:

I would suggest any statutory scheme should give significant consideration to the benefits of the tree to the broader community, including its ecosystem services and amenity. This is one clear advantage of a statutory scheme over the traditional common law process, reflecting current scientific understanding, social attitudes and government policy.^[68]

8.42 There was broad community support for a decision maker to balance the value of the tree with any damage or harm caused or likely to be caused by the tree.^[69] The City of Boroondara argued that:

Legislation should set out criteria that the Court/Tribunal must consider when determining what order they should make. These criteria should ensure that the benefits of the tree are weighed against its disbenefits. At a minimum, the criteria should require consideration of matters such as the aesthetic benefits of the tree, the environmental/ecological benefits of the tree and the benefits of the tree to the neighbourhood character of the area. In Council’s experience, it is often the case that a tree may be causing minor damage or nuisance but that the benefit of the tree outweighs these impacts.^[70]

8.43 VCAT noted that a tree’s contribution to amenity as well as other broader benefits are considerations that intersect with planning and environment law. It suggested that these factors are also important considerations in neighbourhood tree disputes.^[71]

8.44 Dr Gregory Moore OAM explained that a tree should be assessed through a cost-benefit model, stating ‘if the cost of repair is greater than the benefit the tree offers, then the tree can go’.^[72] Dr Moore referred to quantifiable benefits provided by trees:

• Trees provide shade and natural cooling, and reduce deaths during heat waves.

• In a storm, leaves and branches filter wind and remove force, preventing damage to property.

• Trees in a front garden add to the value of a suburban house.^[73]

8.45 Dr Moore suggested that VCAT’s current processes and procedures in matters concerning vegetation can result in outcomes that disregard or overlook the merits of the tree.^[74]

8.46 ENSPEC submitted that ‘urban tree canopy is being lost, both through overall reduction in tree numbers, as well through “replacement” of trees with smaller growing species and shrubs. Planting a new tree is not a replacement of the loss of a mature tree, even if it is replaced by the same species, as the decades of growth required to develop to maturity are lost. It is therefore necessary to prevent the removal of mature trees without solid justification.’^[75]

‘First in time’ principle

8.47 The Commission was told that consideration should be given to whether the tree existed before the built structure on adjoining land. As discussed under the NSW Act, if damage is caused by an existing/established tree to a new dwelling on neighbouring land, then this may result in the affected neighbour paying some or all of the costs associated with pruning or removing the tree.^[76] Similar considerations exist in the Tasmanian Act and Queensland Acts in relation to interference claims.^[77]

8.48 VCAT suggested that if a tree pre-dates development on neighbouring land, consideration should be given to whether any conditions were attached to a development permit requiring protection of the tree, for example to avoid the tree’s protection zone. VCAT suggested that these protections are not always followed in planning matters.^[78]

8.49 Arborist Ben Kenyon expressed the view that ‘one of the most important considerations should be whether the tree pre-existed the built structure or landowners taking control of [neighbouring] land’.^[79] He provided the example of concerns that emerged in a 10–15 year old housing estate about the potential for damage from remnant trees that were hundreds of years old. In his view, people need to accept that trees are part of the environment they are looking to occupy and should be more accommodating of them.^[80]

8.50 Baw Baw Shire Council also stated that the decision maker should have to consider whether the tree or the built structure came first.^[81] HVP Plantations added that the ‘first in time principle’ could be considered in the allocation of legal costs to ensure the outcome is just and fair.^[82]

Past actions of the parties

8.51 A number of community members suggested that any past actions of the parties that may have contributed to the tree dispute should also be taken into account.^[83] One community member stated that irresponsible tree planting, for example allowing a tall tree to grow close to a house, should be taken into consideration by the decision maker.^[84]

Other issues

Consideration of other laws

8.52 One submission advised that consideration should be given to the application of other laws protecting the tree, for example significant tree registers.^[85] The City of Boroondara explained that:

[decision-making] criteria should also require the Court/Tribunal to consider whether the tree is protected by a planning scheme, a current valid Planning Permit, a Local Law or other legislation such as the Aboriginal Heritage Act 2006.^[86]

Tree removal as a last resort

8.53 The City of Boroondara, Nillumbik Shire Council and arborist Robert Mineo submitted that the decision maker should first consider remedies that do not require removal of the tree.^[87]

The Commission’s conclusions—decision-making principles

8.54 The new Act should facilitate evidence-based, transparent and consistent decision making. This will require clear and comprehensive principles to be introduced in the new Act.

8.55 In practice this means that if a claim is initiated about damage or harm, a range of additional matters will be considered by the decision maker in determining orders. Importantly, these broader considerations will not detract from consideration of the alleged damage or harm but will help the decision maker to balance competing rights and interests fairly and transparently in making orders.

8.56 Mandatory decision-making principles will:

• ensure that all relevant information about the tree dispute is taken into account during the decision-making process;

• help to balance competing rights and interests fairly and transparently

• guide the community about the application of the law and help the parties anticipate the likely outcome of a hearing

• help the community to resolve their disputes informally by applying these principles to their own disputes.

One list of decision-making principles

8.57 The New South Wales approach of having all decision-making principles under the one provision is the best way to ensure that no principle is excluded from the decision-making process. This will also allow parties or other community members to easily find and determine the principles that VCAT will consider when it decides a matter.

Principles should be mandatory

8.58 The Queensland and Tasmanian schemes distinguish between mandatory and discretionary decision-making criteria. The New South Wales approach of grouping all decision-making principles together and requiring the court to consider them all is preferred. The Commission sees value in the Tasmanian Act’s limitation that the Tribunal only needs to consider the listed principles ‘to the extent that they are relevant in relation to the application’.^[88]

Principles should be non-exhaustive

8.59 Tree disputes can be complex. They may involve claims of property damage that need to be assessed by experts including builders, or claims of future harm requiring specialist medical evidence. For this reason it is recommended that the list of decision-making principles in the new Act be non-exhaustive and that VCAT be able to consider such other matters as it considers relevant in the circumstances of the case. For example, VCAT may decide that if a tree is to be removed, another should be planted in its place.

Other Acts and laws

8.60 The Commission has been guided by the decision-making guidelines set out in other laws and policies. Many of these broader considerations are reflected in the Commission’s recommendations below and will assist VCAT to balance competing rights and interests fairly and transparently.

8.61 The list of decision-making principles in the new Act should require the decision maker to consider whether interference with the tree would otherwise require consent or authorisation under other Acts or local laws and, if so, whether such consent or authorisation has been obtained. The decision maker should also be required to consider the requirements that may apply under other laws and policies to that land or tree. Even where consent or authorisation is not required under other laws, these laws may still point to matters that VCAT should have regard to in making its decision, for example, the zone use of the land in question.

8.62 Other relevant laws include:

• the Planning and Environment Act 1987 (Vic)

• local laws made pursuant to the Local Government Act 1989 (Vic)

• the Heritage Act 2017 (Vic)

• the Aboriginal Heritage Act 2006 (Vic)

• the Fences Act 1968 (Vic)

• the Catchment and Land Protection Act 1994 (Vic)

• the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).^[89]

8.63 In Chapter 10 the Commission makes recommendations about the interaction of laws and elaborates on some of these decision making principles. The weight that should be given to other laws and policies in the decision making process is also considered.

The benefits of trees

8.64 Decision-making principles should recognise the broader intrinsic benefits of trees to the community (for example, shade and natural cooling). Our community is also placing increasing importance on protecting and encouraging more vegetation in urban spaces. Viewing tree disputes strictly as party–party disputes overlooks some of the broader interests and considerations that arise in our modern urban spaces.

8.65 The new Act should seek to balance the tension between property owners’ rights and the community benefits of living in a leafy environment. Broader environmental considerations often underpin decision-making guidelines in planning schemes and local laws. The Commission supports the decision-making principles in interstate legislation that aim to consider the amenity, scientific, social, cultural, historic and environmental contributions of the tree. The importance of the tree for soil stability should also be considered.^[90]

8.66 In addition, the decision maker should have regard to whether the tree is listed on the Victorian Heritage Register under the Heritage Act 2017 (Vic) or whether the tree is an Aboriginal scarred tree or other tree of Aboriginal cultural heritage significance protected under the Aboriginal Heritage Act 2006 (Vic). This approach will ensure that the new Act either does not interfere with the existing Acts in place to protect trees of heritage value or only does so in an emergency, where the tree poses an imminent danger to life or property.^[91] This is the approach taken in the Queensland scheme to identify culturally significant trees.^[92]

Location and health of the tree and impact of works

8.67 VCAT should have regard to the location of the tree, for example in relation to the common boundary and any nearby built structures. This is the approach in all interstate jurisdictions. In the case of Robson v Leischke^[93] the Court advised that this decision-making principle enables a determination of whether the tree is ‘sufficiently proximate’ to adjoining land that it could in fact cause damage or harm in the event that it failed.

8.68 VCAT should also have regard to the condition of the tree, for example its health and structural integrity. This is the approach taken by the City of Boroondara.^[94] It would ensure the decision maker takes into account arboricultural evidence about the health of the tree and any risks that are posed by the tree.

8.69 It follows that the impact of works to the tree should be articulated as a distinct decision-making principle. In New South Wales this decision-making principle has enabled the Court to consider whether pruning of the tree would be detrimental to the tree’s health and structural stability.^[95] For example, if the tree is assessed as healthy, pruning works should be conducted so as to not render the tree unsafe in the future. Alternatively, if the tree is unhealthy the most appropriate order may be to remove it.^[96]

Past actions of parties

8.70 VCAT should also consider whether anything other than the tree may have contributed to the damage or harm. For example, this may require the decision maker to consider whether trees on the affected neighbour’s land have contributed to the damage or harm^[97] or whether the affected neighbour failed to give the tree owner an adequate opportunity to respond to the damage.^[98] While this would not result in an otherwise hazardous tree being retained, it may result in a portion of the cost of repairs an affected neighbour might be seeking being borne by them.

8.71 This decision-making principle would also require the decision maker to consider any steps taken by the affected neighbour or the tree owner to resolve the dispute. If the tree owner has taken steps to prevent damage or harm then this may mean that an order for ongoing maintenance is more appropriate than tree removal.

‘First in time’ principle

8.72 The new Act should specifically include a decision-making principle that addresses whether the tree existed before the affected neighbour began to occupy the land that is affected by the tree.

8.73 It is not intended that this principle have the effect of preventing an applicant from pursuing relief under the new Act but instead that it is one of a range of principles that VCAT should consider in making its orders. This approach most closely aligns with the provision in the Tasmanian Act.^[99] The Commission observes that the NSWLEC has produced a tree dispute principle on this issue.^[100] The Commission considers that the same outcome may be better achieved by clearly articulating the principle in the new Act.

Recognised weed

8.74 The new Act should apply to a recognised weed provided it both meets the definition of ‘tree’ in the new Act and has caused, is causing or is likely to cause damage to property or land or harm to people in the next 12 months. The VCAT application form should also specifically ask the applicant for information about the species of tree and whether it is a recognised weed.

8.75 Whether the tree is a recognised weed should also be considered by VCAT in making orders. It may be appropriate for VCAT to consider any past actions taken by the landowner with respect to the weed, for example whether or not the landowner was issued with a directions notice under the Catchment and Land Protection Act 1994 (Vic) and failed to comply with this notice.^[101] It may also be more appropriate for VCAT to order the removal of a recognised weed.

Not recommended: Tree removal as a last resort

8.76 The Commission is not persuaded that the new Act should include a decision-making principle that the tree be removed only as a last resort. The cumulative effect of the range of other decision-making principles is that tree removal and indeed any tree works will only occur as a last resort where the situation demands it. The principles do this by encouraging the decision maker to find solutions that consider the broader benefits of the tree and underpinning decisions with impartial arboricultural evidence.

Recommendations

24 The Act should state that before determining an application the Victorian Civil and Administrative Tribunal must consider the following matters to the extent that they are relevant to an application:

(a) the location of the tree in relation to the boundary of the land and any structures or premises

(b) the condition of the tree in respect of its health and structural integrity

(c) whether works to the tree would require any consent or authorisation under other Acts or laws and, if so, whether the consent or authorisation has been obtained

(d) the provisions of the planning scheme which apply to the land under the Planning and Environment Act 1987 (Vic) including relevant zones and overlays and the provisions of other relevant Acts or laws that apply to the land or tree

(e) the impact any pruning, including the impact of maintaining the tree at a particular height, width or shape, would have on the tree

(f) any contribution the tree makes to:

i. the amenity of land on which it is situated, including its contribution to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke

ii. the local ecosystem and biodiversity

iii. the natural landscape and scenic value of the land

(g) whether the tree has any historical, cultural, social or scientific value. This includes a tree that is part of Aboriginal cultural heritage under the Aboriginal Heritage Act 2006 (Vic) or is a registered tree or is situated in a Victorian heritage place under the Heritage Act 2017 (Vic).

(h) any impact the tree has on soil stability, the water table or other natural features of the land or locality

(i) anything, other than the tree, that has contributed, or is contributing, to any harm or damage or likelihood of harm or damage, including:

i. any act or omission by the applicant and the impact of any other trees owned by the applicant

ii. any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify damage

(j) whether the tree and any risk, obstruction or interference associated with the tree existed before the affected neighbour began to occupy the land affected by the tree

(k) whether the tree is a recognised weed

(l) such other matters as the decision-making body considers relevant in the circumstances of the case.

Expert evidence

8.77 Expert evidence will be important in the formal hearing process under the new Act. Tree disputes can encompass complex issues such as the condition of the tree, tree roots, issues with damaged pavements and built structures, and medical issues such as pollen allergies and psychological distress. The new Act should be underpinned by the requirement for arboricultural evidence that shows that the tree is the real and actual cause of damage or harm that has occurred or is likely to occur in the next 12 months. This was broadly supported by community responses.^[102]

8.78 Nillumbik Shire Council expressed concern that any new Act ‘not provide scope for vindictive neighbours to take advantage of a new scheme by bringing unmeritorious claims against neighbours on adjoining land’.^[103] The requirement for expert evidence will reduce the scope for neighbours to bring claims without merit. Arboricultural evidence will also help VCAT devise workable solutions to tree problems.

8.79 This chapter focuses on arboricultural evidence because most submissions and consultations emphasised this issue. However, some comments about medical evidence were also received, such as where pollen allergies are claimed.^[104] The role of qualified building inspectors and surveyors,^[105] construction and geotechnical engineers for property damage^[106] and plumbers for damage to pipes was also raised in submissions.^[107]

8.80 Arborists specialise in the assessment and management of individual trees.^[108] The Commission has been informed that the quality of arboricultural assessment can vary significantly and can affect the direction of neighbourhood tree disputes.^[109] Conflicting assessments could result in an escalation of the dispute. Further, poor quality assessments could result in trees being unnecessarily removed or, alternatively, trees being retained that present risks to health and safety. In addition, the Commission was informed that assessments undertaken by arborists can be prohibitively expensive for many members of the community.^[110]

8.81 The next section examines evidentiary requirements in planning schemes and local laws. It then considers how VCAT currently manages expert evidence across its lists and how this is done by decision makers in tree disputes interstate. Community responses are also considered.

Expert evidence—planning schemes

8.82 Planning scheme overlays and native vegetation particular provisions can protect vegetation on private land. In deciding whether to grant a permit for proposed tree works, such as pruning or tree removal, the responsible authority must consider certain decision-making criteria. Planning schemes can specify the information that permit applicants are required to provide to the responsible authority to facilitate informed decision making. Often this is done through local schedules to the planning scheme. This information may require supporting evidence from an arborist and specify the form of that evidence.

8.83 Under schedule 1 of the Significant Landscape Overlay within the City of Boroondara Planning Scheme, the following evidence is required to obtain a permit to remove, destroy or lop vegetation:

• a written explanation justifying the removal of the vegetation, supported by a suitably qualified arborist^[111]

• a description and accurate site plan denoting the position, height, number, trunk circumference, branch spread, slope of land and species of any vegetation to be removed

• plan details of the location of proposed replanting.^[112]

8.84 The planning scheme does not define what it means by a suitably qualified arborist. However, council advised that it has report writing guidelines for arborists for the assessment of development applications under the planning scheme.^[113] These guidelines recommend that arboricultural reports ‘should be prepared by a suitably qualified and experienced arborist with a Diploma in Arboriculture (AQF Level 5) or higher relevant qualification and demonstrated tree assessment and report writing experience’.^[114] They also recommend that:

• reports must be written within the preceding three months of submission

• reports must be submitted in an accepted format and all resource material including any calculations, figures, or photographs must be appropriately referenced using an acceptable format

• a clear and detailed existing survey plan and/or proposed development plan must be used within all reports

• the report must focus on the characteristics of each tree. It must define each tree’s size, health and vigour, the structural condition and longevity, and rate the retention value of each tree as high, medium or low. Consideration must be given to the requirements of the Preliminary Arboricultural Assessment as defined in Section 2.3.2 of the Australian Standard AS 4970-2009—Protection of Trees on Development Sites.^[115]

8.85 The guidelines further outline what must be included in a report, including a description of the inspection process used, for example the risk assessment methodology; a discussion of the application of any local planning policies or tree protection controls; and an overview of the retention value of the tree.^[116] Council may reject a report with significant errors or omissions.^[117] Council has found that the reports it receives from arborists vary considerably in quality and content.^[118] The most common error that arborists make is not undertaking a risk assessment in line with an industry-recognised methodology.^[119]

8.86 Nillumbik Shire Council advised that if a planning application is received by Council which requires tree removal or may impact on existing vegetation, a private consulting arborist has usually been engaged by the developer to undertake a site inspection and assessment. If not, an arborist’s report will be required for assessment.^[120] Generally, all arborist reports submitted with a planning application will be reviewed by the Planning Services’ consulting arborist, which will include a site inspection, to ensure the information

is correct and the impacts to trees can be mitigated.^[121] Nillumbik believes that the best way to avoid poor quality arboricultural assessments is to require a minimum set of qualifications.^[122]

8.87 Baw Baw Shire Council noted that if a tree is subject to a heritage overlay, the tree owner needs to apply to council for a permit to prune, chop, lop or remove it.^[123] After receiving an application, council arranges for an independent arborist to assess the tree.^[124] Council does not have any in-house arborists of AQF Level 5. Council arborists are of AQF Level 4. Council advises community members to have risk assessments made by arborists with qualifications of AQF Level 5.^[125] Council contracts external arborists of AQF Level 5 when they need to conduct a tree assessment.^[126] Council then determines whether the tree can be pruned or removed, based on the tree’s current health and expected lifespan.^[127] Council stated that photographs, including aerial photographs, can be helpful in making permit decisions.^[128] Photos allow Council to determine the species of tree, and its appearance and position.^[129]

8.88 Baw Baw stated that residents generally provide the correct information in their applications.^[130] In some cases the cost of gathering material for an application (including photography and arborist report) can be prohibitive, and sometimes people choose to run the risk of a fine for unauthorised tree works or removal.^[131] Council explained that a major problem with arborists’ assessments is that many fail to complete a risk assessment as part of their overall assessment of tree health.^[132] While they may assess the health of a tree as ‘poor’, they do not necessarily assess the consequences if it fails.^[133] Council requires arborists’ reports to contain risk assessments as well as health assessments.^[134]

8.89 The City of Port Phillip noted that Council will generally require a report from a suitably qualified arborist prior to approving a development application.^[135]

Expert evidence—local laws

City of Boroondara

8.90 The City of Boroondara advised that:

Council makes its decisions based on evidence. Where sufficient and compelling evidence is provided, Council will generally grant the permit requested by the tree owner. Council accepts that obtaining expert evidence can be costly for residents but believes informed decisions cannot be made without this information.^[136]

8.91 Boroondara explained that council arborists generally receive permit applications under the local law and conduct an on-site inspection of the vegetation prior to making a decision about whether to grant the permit.^[137] All Council arborists have a minimum AQF Level 5 qualification and appropriate risk assessment qualifications; and all application assessment is conducted in accordance with the Tree Protection Local Law assessment guidelines.^[138]

8.92 Council does not provide formal guidelines for report writing for applications under the local law. However, guidelines for arborists’ reports are in place for the assessment of development applications under the Planning Scheme.^[139]

8.93 Boroondara receives approximately half a dozen claims relating to pollen allergies each year. Council has started to gather information from medical practitioners, including immunologists from the Australasian Society of Clinical Immunology and Allergy, about the sources of common allergens. Pathology services can run allergy tests for a wide range of tree and vegetation species. Council confirmed that if a reaction is severe and limits a resident’s use of property, then they will consider issuing a permit for removal. In this situation council will consider a range of factors when it examines causation, such as whether the allergy can be attributed to more than one tree, and whether the removal of the tree would solve the problem.^[140]

City of Port Phillip

8.94 People who wish to remove a significant tree or palm under council’s local law are required to apply to the City Permits Unit (CPU)^[141] which must decide the application within 15 days. The decision is evidence-based. Council’s arborist will make a recommendation about the permit application to the Coordinator of the CPU who will then make a decision.^[142]

8.95 Council arborists provide expert advice on permit applications under the local law.^[143] There are currently three council arborists with relevant qualifications such as a Certificate IV, diploma or degree. Council requires an objective arboricultural assessment by an experienced arborist, providing observations on tree health and whether or not they support removal of the tree or palm.^[144]

8.96 It is not uncommon for permit applicants to submit their own expert advice, but Council advised that the quality of information provided can be poor.^[145] For example, applicants may submit only a quote as evidence that they have engaged an arborist or structural engineer. Often no further information about the expert’s assessment of the tree is provided. In these cases, Council will request further information prior to making a decision under the local law.^[146] Council noted that the community is generally unaware of how to obtain advice from a suitably qualified arborist.

8.97 Local law requires pruning of significant trees or palms to be done to Australian Standard AS 4373-2007—Pruning of Amenity Trees. A suitably qualified arborist would be needed to carry out these works.^[147]

8.98 Council noted that if a pollen allergy is given as the reason for requesting removal of the tree or palm, then this will generally need to be supported by specialist medical evidence. Psychological distress caused by fear of a tree has sometimes formed the basis for an application to remove a tree or palm.^[148]

Expert evidence—VCAT

8.99 In VCAT, an expert witness is defined as ‘a person who has specialised knowledge based on the person’s training, study or experience’.^[149] Schedule 3 to the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act) sets out the broad powers

VCAT has in relation to the appointment of expert witnesses and the provision of expert evidence. Section 80 of the VCAT Act confers broad discretion on VCAT to make a range of directions:

• providing for the appointment of single joint experts or Tribunal-appointed experts

• limiting expert evidence to specified issues.^[150]

8.100 In appropriate cases VCAT may appoint its own expert under clause 7 of schedule 3 of the Act or a special referee under section 95 of the Act.^[151] The Tribunal may do this at the request of the parties, or occasionally on its own initiative.^[152] If the Tribunal proposes to appoint an expert or special referee on its own initiative, it will first obtain the views of the parties in writing or at a directions hearing. The costs of the expert will be shared equally by the parties, unless otherwise ordered.^[153]

8.101 VCAT can direct experts to narrow the issues in dispute and provide the Tribunal with a joint report specifying matters agreed, matters not agreed, and the reasons for the disagreement.^[154] In addition, VCAT can require experts to provide evidence concurrently, generally doing so in a panel format.^[155]

8.102 VCAT can appoint ordinary members with specialised knowledge or experience to enable the proper functioning of the Tribunal.^[156]

Expert reports—VCAT

8.103 VCAT provides the following guidance about what to include in an expert report, under clause 11 of its Practice Note – PNVCAT2 – Expert Evidence (1 October 2014):

• the full name and address of the expert witness

• qualifications, experience and area of expertise

• a statement of expertise to make the report

• reference to any private or business relationship between the expert witness and the party for whom the report is prepared

• all instructions that define the scope of the report (original and supplementary and whether in writing or oral)

• the facts, matters and all assumptions upon which the report proceeds

• reference to those documents and other materials the expert has been instructed to consider or take into account in preparing his or her report and the literature or other material used in making the report

• the identity and qualifications of the person who carried out any tests or experiments upon which the expert relied in making the report

• a statement including:

– a summary of the opinion

– whether there are provisional opinions that are not fully researched for any reason (including the reasons)

– any questions falling outside the expert’s expertise

– whether the report is incomplete or inaccurate in any respect

• a signed declaration by the expert:

I have made all the inquiries that I believe are desirable and appropriate and that no matters of significance which I regard as relevant have, to my knowledge, been withheld from the Tribunal.^[157]

8.104 The requirements of clause 11 do not apply to reports obtained from treating doctors and hospitals, unless the Tribunal directs otherwise.^[158] Doctors and hospitals are nonetheless encouraged to follow these requirements to the extent practicable.^[159] Written submissions are not compulsory, but they are the most common and preferred form of presentation to VCAT.^[160]

Duty of expert witnesses—VCAT

8.105 The duty of an expert witness to the Tribunal is described in the VCAT Act as follows:

• An expert witness has a paramount duty to the Tribunal and not to the party retaining the expert.

• An expert witness has an overriding duty to assist the Tribunal on matters relevant to the expert’s expertise.

• An expert witness is not an advocate for a party to a proceeding.^[161]

8.106 VCAT told the Commission that 80 per cent of parties at VCAT are self-represented.^[162] Expert evidence can be a significant cost to the parties. It was suggested that regardless of whether the parties have engaged an expert or not, they are often dependent on the expertise of the judicial officer or member.^[163]

8.107 In the Planning and Environment List, expert evidence from arborists is frequently received about the health of a tree, its longevity, implications of cutting roots, and protective mechanisms.^[164] It was suggested that VCAT members in the Planning and Environment List develop skills in assessing the accuracy of reports and VCAT members are not bound by the evidence presented to them.^[165]

Other jurisdictions—expert evidence

New South Wales

8.108 The application form in New South Wales puts parties on notice about the importance of evidence.^[166] The NSWLEC encourages parties to carefully consider whether expert evidence is necessary.^[167] It does this because tree dispute hearings are generally fixed for a final hearing before a commissioner who is a qualified arborist^[168] and therefore able to use his or her knowledge of arboriculture in deciding the application. The Court may also engage arborists as court-appointed experts in certain circumstances.^[169]

8.109 The Court acknowledged that arborists engaged by parties may have a high level of adversarial bias.^[170] Where parties have their own experts who cannot agree, the Court may order the experts to meet together on site.^[171] Concurrent evidence is favoured by the NSWLEC because it facilitates a discussion between the experts and helps to narrow the issues in dispute.^[172] It can also reduce the likelihood of adversarial bias and save costs and time.^[173]

8.110 There is no requirement that expert evidence be provided by an arborist with particular qualifications.^[174] However, it is generally accepted that only arborists of AQF Level 5 will complete assessment reports. The Court considers that arborists in New South Wales are generally well trained and knowledgeable.^[175] The Court also noted that all arborists know about the relevant Australian Standards relating to pruning and tree protection zones.^[176]

8.111 Any experts engaged independently by the parties are generally not required to attend the hearing. Written evidence is considered sufficient.^[177] The expert and expert’s report must comply with the Uniform Civil Procedure Rules 2005 (NSW).^[178] Rule 31.27 provides that an expert’s report must include the following:

• the expert’s qualifications as an expert on the issue the subject of the report

• the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed)

• the expert’s reasons for each opinion expressed

• if applicable, that a particular issue falls outside the expert’s field of expertise

• any literature or other materials used in support of the opinions

• any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out

• in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report).

8.112 If an expert witness believes that their expert report may be incomplete or requires clarification on certain points, this must be stated in the report.^[179] These requirements broadly replicate the expert report writing guidelines published by VCAT. The NSWLEC Practice Note for tree disputes hearings also states that ‘it is not the role of experts to express an opinion about whether a tree application should be granted or dismissed’.^[180]

8.113 Where an application is made based on injury said to arise from a medical condition, the Court gives specific Supplementary Standard Directions requiring an applicant to provide properly qualified medical or scientific evidence of a link between the injury and the trees which are the subject of the application.^[181]

Queensland

8.114 QCAT may make an order requiring a survey to be undertaken to clarify the tree’s location in relation to the common boundary; authorising a person to enter the tree-keeper’s land to carry out an order, including entering land to obtain a quotation for carrying out an order; and requiring a report by an ‘appropriately qualified arborist’.^[182] QCAT informed the Commission that it will appoint a tree assessor^[183] if the Tribunal is unable to make a decision without expert arboricultural opinion.^[184]

8.115 QCAT has issued a Practice Direction detailing ‘Arrangements for applications for orders to resolve other issues about trees’.^[185] The directive states that QCAT will generally appoint an expert tree assessor to assist with disputes.^[186] The assessor is asked to inspect the tree/s and the properties subject to the application and provide a report which outlines solutions to the dispute.^[187]

8.116 Alternatively, parties may engage an expert to provide a report. In this case, the experts may be required to attend an experts’ conclave,^[188] after which, the experts should be able to produce a short joint report.^[189] On QCAT’s website, community members are encouraged to contact the Queensland Aboricultural Association to locate a qualified arborist.^[190] The Association’s website details the criteria for both a qualified arborist consultant and a qualified arborist contractor.^[191]

8.117 Expert reports must adhere to Rule 428 of the Uniform Civil Procedure Rules 1999 (Qld), containing the same requirements as under the NSW Act.

Tasmania

8.118 In Tasmania, under section 33(6)(g) of the Neighbourhood Disputes About Plants Act 2017 (Tas), RMPAT may make an order requiring a report to be obtained from an appropriately qualified arborist. No further information is provided about the qualification required of arborists.

8.119 RMPAT requires experts to adhere to a code of conduct.^[192] It can direct experts to concur and submit a joint report.^[193]

8.120 Expert reports must contain certain information as set out in a RMPAT Practice Direction governing the giving of evidence by expert witnesses.^[194] This information is the same as that required by the NSWLEC and QCAT.

Community responses—expert evidence

8.121 There was broad community support for tree dispute decisions to be underpinned by expert evidence.^[195] Dr Gregory Moore OAM explained that:

Too often trees are assumed to be causing problems to infrastructure but there are no data to support the assumptions or assertions made. If for example tree roots are said to be damaging infrastructure, there should be some evidence that the roots of the said

tree are found in the vicinity of the damaged structure. For far too long, lazy consultants have got away with asserting that trees are causing problems without providing evidence.^[196]

8.122 The City of Boroondara agreed:

Legislation should be prefaced by the principle that the party seeking the removal of the tree must be able to establish an actual and real impact of the tree, rather than a perceived or fanciful impact. In Council’s experience, perceived (and often irrationally perceived) impacts of trees are difficult, if not impossible, to assess.^[197]

8.123 The City of Port Phillip and Baw Baw Shire Council commented that assessment and expert advice from an appropriately qualified arborist would assist the decision-making process.^[198] Baw Baw Shire Council suggested that expert advice from other suitably qualified individuals, such as environmental scientists and botanists, would be appropriate.^[199]

8.124 Other community responses supported specialist medical evidence or pathology testing for claims relating to future harm.^[200]

Qualifications of arborists

8.125 Community members overwhelmingly supported an approach that would require minimum qualification levels for arborists who provide evidence for matters initiated under the new Act. In particular, a minimum AQF Level 5 qualification with additional practical experience was supported.^[201] However, one submission noted that a new scheme should not attempt to ‘codify the role of arborists as the admissibility of evidence would be a matter for the decision-making body to consider’.^[202]

8.126 Arborist Ben Kenyon explained that:

The guidelines set out in AS 4970-2009 Protection of trees on development sites should be followed. The standard specifies that a suitably qualified person is one that has an AQF Level 5 in arboriculture as the minimum.^[203]

8.127 Dr Gregory Moore OAM supported such an approach:

In Victoria, there is a very good argument that it should be higher such as a minimum of level 5. The reason for this is that there are several hundred trained/educated arborists in Victoria at level 5 or above, but this is not the case in other states.^[204]

8.128 Arborist Robert Mineo explained that arboricultural qualifications under the Australian Qualification Framework have undergone some changes. Mr Mineo stated:

Many experienced arborists are qualified with what used to be a Level IV arborists’ qualification (advanced certificate). This was described as the ‘old school diploma’ and it is no longer offered. The arborist qualification regime changed in 2009–10. Under the current qualification framework, a full tree assessment qualification is usually at Level V (diploma) but lesser elements of tree assessment, mostly to determine safely working around trees, is undertaken in Level 3.^[205]

8.129 ENSPEC, an arboricultural consulting firm, advised:

Arboriculture is a specialist skillset and knowledge base that is still relatively new and evolving. Many people, both lay persons and other professions, believe they “know trees” without having the training and experience of an arborist. Expertise must be demonstrated through formal training, experience and ongoing updating of knowledge in arboriculture, and not, as is often found in practice, from related disciplines such as landscape architecture or horticulture, or outdated training.

The arboricultural training packages under the Australian Qualifications Framework have been updated regularly and substantially since first introduced. Practitioners who were qualified under the earlier versions, or even before the AQF, and have not updated their qualifications, are out of date. Further, the AQF is structured in such a way that persons with a qualification below AQF Level 5 would not be expected to provide consultancy or expert witness testimony.^[206]

8.130 VCAT was supportive of the need for experts to provide assistance during tree dispute hearings. VCAT suggested experts should be suitably qualified and experienced, but it did not support enshrining minimum qualification levels and experience in the new Act. VCAT noted that qualifications are subject to change over time.^[207]

8.131 QCAT informed the Commission that the qualification of an arborist is a relevant consideration when determining the weight given to evidence submitted on behalf of a party.^[208]

Duty to the Court

8.132 A common theme raised in submissions and consultations was the need for independent and impartial arboricultural assessment to guide decision making under a new Act.^[209] At present, it is claimed, people shop around for arborists to support their case for tree removal or retention, rather than seeking impartial advice.^[210]

8.133 The City of Boroondara noted that ‘it is Council’s experience that people seeking to remove trees will often be able to find an expert who will support their application’.^[211] ENSPEC stated that:

Unfortunately, arboriculture is an unregulated profession, meaning that there is a wide variation in the quality of training, experience and up-to-date knowledge amongst practitioners. There is also no professional recourse to address unethical behaviour as there is in licensed professions. There are also many practitioners that provide both consultancy/advice and undertake practical tree work, leading to a potential conflict of interest in providing impartiality. Establishing impartiality of expertise will be crucial to good outcomes. ^[212]

8.134 Dr Gregory Moore OAM suggested that ‘expert witnesses should be experts of the court not of either of the parties’.^[213] One community member stated that experts under new laws should ‘be bound by an appropriate Code of Conduct and be independent from either neighbour’.^[214]

8.135 Some respondents preferred the approach of appointing one independent expert to guide the tree dispute hearing. Professor Phillip Hamilton stated, ‘One expert should be appointed in each case. Otherwise there will be a dispute as to the expert report. We want to achieve quick results at minimal cost.’^[215] The City of Boroondara supported an approach that would enable the Tribunal to appoint an independent expert rather than the expert being appointed by the party.^[216]

8.136 Nillumbik Shire Council endorsed QCAT’s use of independent tree assessors by stating that ‘this is a sensible approach and could facilitate better outcomes’.^[217] Nillumbik suggested that if parties are each responsible for 50 per cent of this cost it would encourage them to be more reasonable about resolving the dispute.^[218] It further observed that sharing this cost ‘may also discourage vindictive neighbours from bringing unmeritorious claims’.^[219] Arborist Robert Mineo supported the appointment of an independent tree assessor and noted that requiring the costs to be shared equally could save each party the total cost of engaging an arborist.^[220]

The quality of expert reports

8.137 There was general agreement amongst arborists, councils, VCAT and QCAT that the quality of arboricultural reporting can vary.^[221] Boroondara and Baw Baw Councils explained that a key issue with reports is a failure to complete an industry-recognised risk assessment as part of their overall assessment of the tree.^[222]

8.138 To address this issue, some arborists favoured a template for report writing or report writing guidelines. Arborists at ArborCamp agreed that the Council Arboriculture Victoria’s Arboricultural Reporting Guidelines are useful.^[223] Arborist Robert Mineo added that:

It would be wise for arborists to have a template for reporting writing. This would encourage arborists to adhere to the same benchmark, and for the decision-making body to receive unified reports. A report writing template would also make it easier for arborists to supply information and for decisionmakers to consider information.^[224]

The Commission’s conclusions—expert evidence

Evidence-based decision making

8.139 The new Act should be underpinned by evidence-based decision making, supported by arboricultural (and other) expert evidence. Expert evidence will assist VCAT to ensure that the tree is the real and actual cause of the damage or harm that has occurred or is likely to occur in the next 12 months. Expert assistance will also help VCAT to incorporate practical and durable solutions in its orders.

8.140 The recommendations in Chapter 7 support the use of VCAT members with arboricultural expertise or the use of independent tree assessors in hearings under the new Act. This means that parties may not need to retain experts to provide evidence to VCAT. It will also help to reduce the cost of expert evidence. However, the Commission acknowledges that tree disputes can be highly emotive and contentious and that parties will sometimes want their own experts to assist them during a hearing. Parties that provide expert evidence to VCAT in a tree dispute including any independent tree assessors should be required to meet certain evidentiary requirements as discussed below.

Minimum qualification requirements

8.141 The Act should specify minimum qualification requirements for expert roles in VCAT.

8.142 Requiring minimum qualification levels will help ensure trees are appropriately assessed in line with industry-approved risk assessment methods.^[225] This is of primary importance for a scheme that will consider whether trees have caused damage or may cause future damage or harm.

8.143 Arborists trained to AQF Level 5 have relevant expertise in using industry-approved risk assessment tools to properly determine whether the tree may fail and cause damage or harm.^[226] The City of Boroondara identified the following risk assessment methodologies and explained that one or more of these assessments form part of the regular training of an AQF Level 5 arborist:

• Quantified Tree Risk Assessment (QTRA) —a United Kingdom system with two-day courses offered in Australia^[227]

• Tree Risk Assessment Qualification (TRAQ)—a United States system with two-day courses followed by a half-day assessment offered in Australia^[228]

• the Matheny & Clarke method.^[229]

8.144 The Commission has considered the course requirements of a diploma in Arboriculture and notes that an additional tree assessment method, the Visual Tree Assessment (VTA), is listed as required knowledge.^[230] ENSPEC relies on the VTA ‘to inspect and assess trees in order to identity any defects or problems that may lead to structural instability or failure’.^[231]

8.145 Independent expert evidence provided to VCAT about the health of the tree and likelihood of risk should be provided by those at a minimum AQF Level 5 or equivalent with at least two years of practical experience. This is reasonable given that Victoria is home to ‘several hundred trained/educated arborists in Victoria at level 5 or above’.^[232]

8.146 This requirement will also act as a reference point for people in the community who wish to obtain their own expert advice outside VCAT. See Chapter 12 for recommendations about providing the community with information about what to look for when hiring an arborist.

8.147 Enabling arborists to provide evidence with a qualification that is equivalent to an AQF Level 5 will help to account for any changes to arborist qualifications over time, as identified by VCAT.^[233] The Commission is aware that a review of existing arborist qualifications is currently being undertaken.^[234] Any changes will enhance the provision of expert arboricultural evidence at tree dispute hearings. It follows that changes to the arborist qualification framework will need to be taken into account in implementing the recommendations in this chapter.

Recommendation

25 The Act should require that arborists who provide evidence to the Victorian Civil and Administrative Tribunal hold a relevant arboricultural qualification of minimum Australian Qualifications Framework (AQF) Level 5 or equivalent and have at least two years practical experience.

Expert’s duty to VCAT

8.148 VCAT should remind the parties and experts in the tree disputes hearing about the duties of expert witnesses to the Tribunal:

• An expert witness has a paramount duty to the Tribunal and not to the party retaining the expert.

• An expert witness has an overriding duty to assist the Tribunal on matters relevant to the expert’s expertise.

• An expert witness is not an advocate for a party to a proceeding.^[235]

8.149 These duties, outlined in a Tribunal practice note, should be referred to in the detailed information guide that VCAT should produce on the new Act. See Chapter 12.

Concurrent evidence

8.150 In situations where both parties decide to bring their own arborists to VCAT tree dispute hearings, the provision of a joint report or concurrent evidence would be appropriate. VCAT is able to direct experts to provide the Tribunal with a joint report, or require experts to provide evidence concurrently. ^[236] The provision of joint evidence would assist VCAT to:

• narrow the issues in dispute

• resolve the matter more quickly and efficiently

• assist the parties to accept the final decision in the hearing.

8.151 This approach would also help to reduce the incentive for parties to hire arborists to simply advocate on their behalf.

8.152 One arborist provided the example of three arborists jointly conferring in a coronial matter. It was suggested that this process took approximately two hours whereas it was estimated that it may have taken two days for the arborists to provide their evidence individually.^[237]

Guidelines for written reports

8.153 In accordance with existing VCAT procedure, experts engaged by the Tribunal or by the parties to the dispute should submit a written report adhering to the requirements set out in clause 11 of VCAT’s Practice Note PNVCAT2.^[238]

8.154 Additional requirements should apply to written reports from arborists, given that the quality of arboricultural reporting can vary. The Commission has identified additional requirements from the Council Arboriculture Victoria, Arboricultural Reporting Guidelines for Development.^[239] They are:

• a requirement that the on-site assessment has been undertaken within the three months preceding the hearing

• a detailed description of the assessment methodology relied on, including the date of the tree inspection and any limitations of the assessment

• a record of the expert’s observation of the tree, providing an assessment of the categories for the tree’s health, condition, form and structure^[240]

• a photograph supporting observations and highlighting points of interest

• details of the local planning scheme overlays and local laws applying to the tree

• a statement of whether the tree is remnant, indigenous, native, exotic or weed species

• a statement of the retention value of trees based on the objectives of the local planning scheme or the local law.^[241]

8.155 Claims relating to future harm may encompass risks of slipping and falling over leaf litter,^[242] pollen allergies^[243] and psychological distress.^[244] Specialist medical evidence and/or testing demonstrating a causal link between the tree and the medical condition should be required. This view was supported by one community member and a number of councils.^[245] VCAT should develop a specific Practice Note about this requirement.

8.156 Where an application is made based on injury said to arise from a medical condition, the NSWLEC gives supplementary standard directions requiring applicants to ‘to provide properly qualified medical or scientific evidence of a link between the injury and the trees’.^[246] This approach is a good guide for Victoria.

8.157 Other experts who may be relied upon by the Tribunal, such as building surveyors, engineers and plumbers, will also need to adhere to the procedures VCAT has in place for expert evidence.

Recommendations

26 The Victorian Civil and Administrative Tribunal should direct experts in tree dispute matters to comply with clause 11 of Practice Note PNVCAT2: Expert Evidence, 1 October 2014 with the following additional requirements:

(a) a requirement that the on-site assessment has been undertaken during the three months leading up to the hearing

(b) a detailed description of the assessment methodology relied upon, including the date of the tree inspection and any limitations of the assessment

(c) a record of the expert’s observation of the tree, providing an assessment of the categories for the tree’s health, condition, form and structure

(d) a photograph supporting observations and highlighting points of interest

(e) details of the local planning scheme overlays and local laws applying to the tree

(f) information about whether the tree is remnant, indigenous, native, exotic or weed species

(g) information about the retention value of the tree based on the objectives of the local planning scheme or the local law.

27 The Victorian Civil and Administrative Tribunal should develop a Practice Note about the requirement for a causal link between the tree and any harm, such as a medical condition, that is the subject of an application.

1. Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 42.03.

   ↑

2. Ibid, cl 42.01.

   ↑

3. Ibid, cl 42.02.

   ↑

4. Ibid, cl 43.01.

   ↑

5. Ibid, cl 44.06. Other VPPs that relate to bushfire and vegetation removal are: cl 53.02 ‘Bushfire Planning’; cl 52.12 ‘Bushfire Protections: Exemptions’. See also Department of Environment, Land, Water and Planning (Vic), Planning Practice Note No 64: Local Planning for Bushfire Protection, September 2015, 3 <www.planning.vic.gov.au/publications/planning-practice-notes>.

   ↑

6. Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 52.17. Particular provisions are specific prerequisites or planning provisions for a range of particular uses and developments. They apply consistently across the state: Department of Environment, Land, Water and Planning (Vic), A Practitioner’s Guide to Victorian Planning Schemes (Version 1.1, October 2018) [3.4] <https://www.planning.vic.gov.au/guide-home/a-practitioners-guide-to-victorian-planning-schemes>.

   ↑

7. These decision guidelines in overlays or schedules to overlays must also be considered as part of the VicSmart permit application process. For the native vegetation particular provisions these guidelines are encompassed within the Department of Environment, Land, Water and Planning, Guidelines for the Removal, Destruction or Lopping of Native Vegetation (2017), an incorporated document in all Victorian planning schemes: see Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019) cl 59.06-2 ‘Decision guidelines’; 72.04 ‘Documents incorporated in this planning scheme’.

   ↑

8. Department of Environment, Land, Water and Planning (Vic), A Practitioner’s Guide to Victorian Planning Schemes (Version 1.1, October 2018) [3.4] <https://www.planning.vic.gov.au/guide-home/a-practitioners-guide-to-victorian-planning-schemes>.

   ↑

9. Department of Environment, Land, Water and Planning (Vic), ‘East Gippsland Planning Scheme’, Planning Schemes Online (11 April 2019)

   cl 42.02-5 ‘Decision guidelines’, <http://planning-schemes.delwp.vic.gov.au/schemes/eastgippsland>.

   ↑

10. East Gippsland Shire Council, East Gippsland Planning Scheme (11 April 2019) sch 8 to the Vegetation Protection Overlay—Mallacoota Vegetation Protection Area <http://planning-schemes.delwp.vic.gov.au/schemes/eastgippsland>.

    ↑

11. Ibid.

    ↑

12. Local laws are made by local governments under the Local Government Act 1989 (Vic). Local laws are therefore aimed at dealing with local issues only.

    ↑

13. It includes the suburbs of Ashburton, Balwyn, Balwyn North, Burwood, Camberwell, Canterbury, Deepdene, Glen Iris, Glenferrie South, Greythorn, Hawthorn, Hawthorn East, Kew, Kew East, Mont Albert and Surrey Hills: Victorian Government, ‘Boroondara City’, Know Your Council (Web Page) <http://knowyourcouncil.vic.gov.au/councils/boroondara>.

    ↑

14. Tree Protection Local Law 2016 (City of Boroondara) s 2. A ‘significant tree’ means a tree listed in Council’s Significant Tree Study. A ‘canopy tree’ means any tree (a) with a total trunk circumference of 110cm or more measured at a point 1.5 metres along the trunk’s length from the closest point above ground level; or (b) if multi-stemmed, with a total trunk circumference of all its trunks of 110cm or more measured at a point 1.5 metres along the trunks’ lengths from the closest point above ground level; or (c) with a trunk circumference of 150cm or more measured at ground level.

    ↑

15. Tree Protection Local Law 2016 (City of Boroondara) s 12(2).

    ↑

16. Ibid.

    ↑

17. Consultation 8 (City of Boroondara).

    ↑

18. Ibid.

    ↑

19. Ibid.

    ↑

20. Local Law No.1 (Community Amenity) 2013 (City of Port Phillip) defines a significant tree as ‘a tree or palm on private land: with a trunk circumference or 150 centimetres or greater, measured 1 metre above the ground; or with multiple stems where the circumference of its exterior stems is equal to, or greater than 150 centimetres when measured 1 metre about ground level’.

    ↑

21. Consultation 12 (City of Port Phillip).

    ↑

22. Local Law No 1 (Community Amenity) 2013 (City of Port Phillip) s 44(1). Note that a permit does not apply where an adjacent landowner removes branches which overhang that adjacent land.

    ↑

23. Ibid.

    ↑

24. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 12; Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 73; Neighbourhood Disputes About Plants Act 2017 (Tas) s 30.

    ↑

25. Consultation 11 (Land and Environment Court of New South Wales).

    ↑

26. Neighbourhood Disputes About Plants Act 2017 (Tas) s 30; see, eg, Tasmania, Parliamentary Debates, House of Assembly, 4 April 2017,

    6 (Rene Hidding); Neighbourhood Disputes About Plants Bill 2017 (Tas).

    ↑

27. See generally Trees (Disputes Between Neighbours) Act 2006 (NSW) s 12; Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 73; Neighbourhood Disputes About Plants Act 2017 (Tas) s 30.

    ↑

28. See Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 73(i); Neighbourhood Disputes About Plants Act 2017 (Tas) s 30(h). This decision-making principle is unique to the dedicated tree dispute schemes in Queensland and Tasmania only.

    ↑

29. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 12(h)(i); Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 74; Neighbourhood Disputes About Plants Act 2017 (Tas) s 31(1).

    ↑

30. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 74(2); Neighbourhood Disputes About Plants Act 2017 (Tas) s 31(2). These principles include anything, other than the tree or plant, that has contributed, or is contributing, to the injury or damage or likelihood of injury or damage, including any act or omission by the affected landholder or neighbour and the effect of any tree or plant situated on the affected landholder’s or neighbour’s land and any steps taken by the affected landholder or neighbour, or the owner of the area of land or tree-keeper on which the tree or plant is situated, to prevent or rectify the injury or damage or the likelihood of injury or damage.

    ↑

31. Consultation 11 (Land and Environment Court of New South Wales).

    ↑

32. Ibid.

    ↑

33. Land and Environment Court of New South Wales, Annotated Trees (Disputes Between Neighbours) Act 2006 (14 January 2013).

    ↑

34. Trees (Disputes Between Neighbours) Act 2006 (NSW) s 12(h).

    ↑

35. The Court publishes decisions under the NSW Act which contain ‘tree dispute principles’. These principles provide an understanding of how the Court has approached a particular aspect of a dispute. Three principles have been published to date – ‘claims for structural damage to property’, ‘the tree was there first’ and ‘urban trees and ordinary maintenance.’ For a list of the Court’s Tree Dispute Principles, see Land and Environment Court of New South Wales, Tree Dispute Principles (Web Page, 25 September 2017) <http://www.lec.justice.nsw.gov.au/Pages/practice_procedure/principles/tree_principles.aspx>.

    ↑

36. This tree dispute principle is derived from the case of Black v Johnson (No 2) [2007] NSWLEC 513 [15]. In this case the court ordered the removal of a tree on a common boundary that had caused damage to the affected neighbour’s building. A relevant consideration was that the tree pre-existed the construction of the building. The court considered whether alternative designs of the building and an alternative location would have mitigated the damage that resulted. The court determined that the tree would have posed a problem regardless and therefore did not require the affected neighbour to pay for its removal.

    ↑

37. O’Connell v Gallagher [2007] NSWLEC 718; See also Osborne v Hook [2008] NSWLEC 1231; Lazarus v Le [2010] NSWLEC 1118, [11–13] where the Court considered the failure by the affected neighbour to give notice to the tree owner when the damage occurred.

    ↑

38. [2007] NSWLEC 718.

    ↑

39. O’Connell v Gallagher [2007] NSWLEC 718. The damage was caused by a tree root to a low brick wall supporting a hot water pipe.

    ↑

40. [2007] NSWLEC 764.

    ↑

41. Nolan v Psaltis [2007] NSWLEC 764, 9.

    ↑

42. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 73(i). The Queensland Act also provides that ‘no financial value or carbon trading value may be placed on a tree’: see Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 73(3). This provision aims to prevent the resolution of disputes being affected or frustrated by ‘unsettled methods of calculating the monetary value of trees’: see Explanatory Notes, Neighbourhood Disputes Resolution Bill 2010 (Qld) cl 73.

    ↑

43. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 74–75.

    ↑

44. Ibid ss 66, 74(2).

    ↑

45. Ibid s 41(1).

    ↑

46. Consultation 15 (Queensland Civil and Administrative Tribunal).

    ↑

47. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 71.

    ↑

48. Ibid s 72.

    ↑

49. Ibid s 75(d).

    ↑

50. Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Report No 72, December (2015) 125—6.

    ↑

51. Ibid 128.

    ↑

52. Neighbourhood Disputes About Plants Act 2017 (Tas) s 30.

    ↑

53. Ibid s 31.

    ↑

54. Neighbourhood Disputes About Plants Act 2017 (Tas) s 31(2)(a).

    ↑

55. Ibid s 32.

    ↑

56. Ibid s 32(d).

    ↑

57. Submissions 4 (Name withheld), 5 (Name withheld), 7 (Ben Kenyon), 9 (Dr Karen Smith), 12 (Dr Gregory Moore OAM),17 (Name withheld), 18 (ENSPEC), 19 (Name Withheld), 20 (Name Withheld), 22 (Name withheld), 25 (City of Boroondara), 27 (Name withheld), 28 (HVP Plantations), 29 (David Galwey); Consultations 2 (Dr Gregory Moore OAM), 6 (Ben Kenyon), 8 (City of Boroondara), 9 (Nillumbik Shire Council), 10 (Baw Baw Shire Council), 12 (City of Port Phillip), 14 (Robert Mineo).

    ↑

58. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

    ↑

59. Submissions 20 (Name withheld); Confidential submission.

    ↑

60. Submissions 9 (Dr Karen Smith), 19 (Name withheld), 22 (Name withheld), 24 (Name withheld), 38 (L. Barry Wollmer); Consultations

    3 (HVP Plantations), 10 (Baw Baw Shire Council).

    ↑

61. Consultation 10 (Baw Baw Shire Council).

    ↑

62. Submission 9 (Dr Karen Smith).

    ↑

63. Submission 18 (ENSPEC).

    ↑

64. Submission 9 (Dr Karen Smith); Consultations 6 (Ben Kenyon), 8 (City of Boroondara), 9 (Nillumbik Shire Council), 10 (Baw Baw Shire Council), 11 (Land and Environment Court of New South Wales), 12 (City of Port Phillip).

    ↑

65. Submissions 18 (ENSPEC), 19 (Name Withheld), 25 (City of Boroondara); 29 (David Galwey); Consultations 2 (Dr Gregory Moore OAM),

    14 (Robert Mineo).

    ↑

66. Submission 9 (Dr Karen Smith).

    ↑

67. Consultation 6 (Ben Kenyon).

    ↑

68. Submission 29 (David Galwey).

    ↑

69. Submissions 7 (Ben Kenyon), 18 (ENSPEC), 25 (City of Boroondara); 27 (Name withheld); Consultation 2 (Dr Gregory Moore OAM).

    ↑

70. Submission 25 (City of Boroondara).

    ↑

71. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

    ↑

72. Consultation 2 (Dr Gregory Moore OAM).

    ↑

73. Ibid.

    ↑

74. Ibid.

    ↑

75. Submission 18 (ENSPEC).

    ↑

76. This is a Tree Dispute Principle developed by the Court under section 12(h) of the Trees (Disputes Between Neighbours) Act 2006 (NSW).

    ↑

77. See Neighbourhood Disputes About Plants Act 2017 (Tas) ss 30(d), 32(d); Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 75(d).

    ↑

78. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

    ↑

79. Consultation 6 (Ben Kenyon).

    ↑

80. Ibid.

    ↑

81. Consultation 10 (Baw Baw Shire Council).

    ↑

82. Submission 28 (HVP Plantations).

    ↑

83. Submissions 5 (Name withheld), 22 (Name withheld).

    ↑

84. Submission 22 (Name withheld).

    ↑

85. Submissions 17 (Name withheld).

    ↑

86. Submission 25 (City of Boroondara).

    ↑

87. Consultations 8 (City of Boroondara), 9 (Nillumbik Shire Council), 14 (Robert Mineo).

    ↑

88. Neighbourhood Disputes About Plants Act 2017 (Tas) s 30.

    ↑

89. Other Acts also relate to the management of vegetation for fire prevention; to minimise interference with powerlines and to protect public health and wellbeing and the environment. These Acts are less likely to impact the new Act. See Ch 10.

    ↑

90. See, eg, Lee v Waugh [2012] NSWLEC 1341. In this case the tree owner contended that the tree was ‘important as a means of retaining the sandy soil in the sloping backyard. The Court took this into account by ordering that steps be taken to stabilise the soil in removing the tree. This was by way of reducing the tree to a stump of 1m high: [25],[36]

    ↑

91. See, eg, Aboriginal Heritage Act 2006 (Vic) s 29(c).

    ↑

92. See Neighbourhood Disputes (Dividing Fences and Trees) 2011 (Qld) s 73(2).

    ↑

93. (2008) 72 NSWLR 98 [222].

    ↑

94. See Tree Protection Local Law 2016 (City of Boroondara) s 12(2).

    ↑

95. Morris v Kedziora [2011] NSWLEC 1156.

    ↑

96. In Morris v Kedziora [2011] NSWLEC 1156 the Court determined that pruning the tree would make it unstable and therefore the Court ordered its removal. The lopping sought by the applicants (that is, the ‘flat-topping’ of the tree) would have had a detrimental impact on the structural integrity of the tree [17].

    ↑

97. See, eg, O’Connell v Gallagher [2007] NSWLEC 718; Culgan v Bradley [2009] NSWLEC 1347.

    ↑

98. See, eg, Osborne v Hook [2008] NSWLEC 1231; Turner v O’Donnell [2009] NSWLEC 1349 [23].

    ↑

99. See Neighbourhood Disputes About Plants Act 2017 (Tas) s 30(d).

    ↑

100. Black v Johnson (No 2) [2007] NSWLEC 513.

     ↑

101. Catchment and Land Protection Act 1994 (Vic) s 70B.

     ↑

102. Submissions 2 (Name withheld), 12 (Dr Gregory Moore OAM), 18 (ENSPEC), 20 (Name withheld), 25 (City of Boroondara).

     ↑

103. Consultation 9 (Nillumbik Shire Council).

     ↑

104. Consultations 8 (City of Boroondara),12 (City of Port Phillip).

     ↑

105. Submission 4 (Name withheld).

     ↑

106. Submission 9 (Dr Karen Smith).

     ↑

107. Submission 4 (Name withheld); Consultation 8 (City of Boroondara).

     ↑

108. Arboriculture Australia, Australian Qualification Framework (AQF) and Australian Training Programs (Web Page) <http://arboriculture.org.au/Qualification>.

     ↑

109. Submission 18 (ENSPEC); Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 8 (City of Boroondara),

     9 (Nillumbik Shire Council), 10 (Baw Baw Shire Council), 11 (Land and Environment Court of New South Wales), 14 (Robert Mineo).

     ↑

110. Consultations 5 (Victorian Civil and Administrative Tribunal), 10 (Baw Baw Shire Council), 14 (Robert Mineo).

     ↑

111. The qualification requirements of arborists are not further defined within the City of Boroondara Planning Scheme.

     ↑

112. City of Boroondara, City of Boroondara Planning Scheme, 15 March 2019) cl 42.03 sch 1, 4.0 Application Requirements.

     ↑

113. City of Boroondara, Arboricultural Report Writing Guide: Guide for the Preparation of Preliminary Arboricultural Reports, Arboricultural Impact Assessments, Root Investigation/ Mapping Reports, Tree Management and Protection Plans and Transplant Method Statement, (Guidelines, June 2017).

     ↑

114. Ibid.

     ↑

115. Ibid 3. See Ch 6 for a detailed discussion on the Australian Standards Pruning of Amenity Trees AS4373-2007 and Protection of Trees on Development Sites AS4970-2009. In Ch 9 the Commission recommends that orders for tree works made under a the new Act be carried out by a qualified arborist in accordance with the Australian Standards AS4373-2007 Pruning of Amenity Trees and AS4970-2009 Protection of Trees on Development Sites.

     ↑

116. City of Boroondara, Arboricultural Report Writing Guide: Guide for the Preparation of Preliminary Arboricultural Reports, Arboricultural Impact Assessments, Root Investigation/ Mapping Reports, Tree Management and Protection Plans and Transplant Method Statements (Guidelines, June 2017) 4.

     ↑

117. Ibid 3.

     ↑

118. Consultation 8 (City of Boroondara).

     ↑

119. Ibid.

     ↑

120. Consultation 9 (Nillumbik Shire Council).

     ↑

121. Consultation 9 (Nillumbik Shire Council).

     ↑

122. Ibid.

     ↑

123. Consultation 10 (Baw Baw Shire Council).

     ↑

124. Ibid.

     ↑

125. Ibid.

     ↑

126. Ibid.

     ↑

127. Ibid.

     ↑

128. Ibid.

     ↑

129. Ibid.

     ↑

130. Ibid.

     ↑

131. Ibid.

     ↑

132. Ibid.

     ↑

133. Ibid.

     ↑

134. Ibid.

     ↑

135. Consultation 12 (City of Port Phillip).

     ↑

136. Consultation 8 (City of Boroondara).

     ↑

137. Ibid.

     ↑

138. Ibid; see Tree Protection Local Law 2016 (City of Boroondara) s 12(2).

     ↑

139. Consultation 8 (City of Boroondara).

     ↑

140. Ibid.

     ↑

141. Consultation 12 (City of Port Phillip).

     ↑

142. Ibid.

     ↑

143. Ibid.

     ↑

144. Ibid; see also Local Law No 1 (Community Amenity) 2013 (City of Port Phillip) cl 44(4)(a).

     ↑

145. Consultation 12 (City of Port Phillip).

     ↑

146. Ibid.

     ↑

147. Ibid.

     ↑

148. Ibid.

     ↑

149. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 3.

     ↑

150. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 80.

     ↑

151. VCAT may refer a question to a special referee for opinion/determination.

     ↑

152. Victorian Civil and Administrative Tribunal (VCAT), Practice Note PNVCAT2: Expert Evidence, 1 October 2014, 7.

     ↑

153. Ibid 8.

     ↑

154. Victorian Civil and Administrative Tribunal Act 1998 (Vic) sch 3; see also Victorian Civil and Administrative Tribunal (VCAT), Practice Note PNVCAT2: Expert Evidence, 1 October 2014, 6.

     ↑

155. Victorian Civil and Administrative Tribunal Act 1998 (Vic) sch 3; see also Victorian Civil and Administrative Tribunal (VCAT), Practice Note PNVCAT2: Expert Evidence, 1 October 2014, 7.

     ↑

156. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 14.

     ↑

157. Victorian Civil and Administrative Tribunal (VCAT), Practice Note PNVCAT2: Expert Evidence, 1 October 2014, cl 11.

     ↑

158. Ibid cl 13.

     ↑

159. Ibid.

     ↑

160. Victorian Civil and Administrative Tribunal (VCAT), Submissions (Web Page) <https://www.vcat.vic.gov.au/steps-to-resolve-your-case/how-to-prepare-for-your-hearing/submissions>.

     ↑

161. Victorian Civil and Administrative Tribunal (VCAT), Practice Note PNVCAT2: Expert Evidence, 1 October 2014, 3; see also Victorian Civil and Administrative Tribunal Act 1998 (Vic) sch 3.

     ↑

162. Consultation 5 (Victorian Civil and Administrative Tribunal).

     ↑

163. Ibid.

     ↑

164. Ibid.

     ↑

165. Ibid.

     ↑

166. Consultation 11 (Land and Environment Court of New South Wales); see Land and Environment Court of New South Wales, Form C: Tree Dispute Application (Version 3) <http://www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/Trees-hedge-disputes-process/treedisputes_how.aspx>; Land and Environment Court of New South Wales, Form H: Tree Dispute Claim Details (Damage to Property or Injury to a Person) (Version 1) <http://www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/Trees-hedge-disputes-process/treedisputes_how.aspx>.

     ↑

167. Land and Environment Court of New South Wales (NSWLEC), Practice Note Class 2: Tree Applications, 1 December 2018 [41].

     ↑

168. Ibid [42].

     ↑

169. Uniform Civil Procedure Rules 2005 (NSW) r 31.20(2)(g); see generally Justice Rachel Pepper, ‘Expert Evidence in the Land and Environment Court’ (Speech delivered at the Australian Property Institute, 21 January 2013) <http://www.lec.justice.nsw.gov.au/Pages/publications/speeches_papers.aspx>.

     ↑

170. Consultation 11 (Land and Environment Court of New South Wales).

     ↑

171. Ibid.

     ↑

172. See Justice Rachel Pepper, ‘Expert Evidence in the Land and Environment Court’ (Speech delivered at the Australian Property Institute,

     21 January 2013) 18 <http://www.lec.justice.nsw.gov.au/Pages/publications/speeches_papers.aspx>.

     ↑

173. See, eg, Justice Peter Garling, ‘Concurrent Expert Evidence: Reflections and Development’ (2011) 49(10) Law Society Journal 59, 60.

     ↑

174. Consultation 11 (Land and Environment Court of New South Wales).

     ↑

175. Ibid.

     ↑

176. Ibid.

     ↑

177. Land and Environment Court of New South Wales (NSWLEC), Practice Note Class 2: Tree Applications, 1 December 2018, [43].

     ↑

178. Uniform Civil Procedure Rules 2005 (NSW) r 31.27.

     ↑

179. Ibid.

     ↑

180. Land and Environment Court of New South Wales (NSWLEC), Practice Note Class 2: Tree Applications, 1 December 2018, [44]. The Commission notes that Practice Notes do not have legislative force.

     ↑

181. Ibid 3, 11.

     ↑

182. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 66.

     ↑

183. An AQF Level 5 arborist with 5 years of experience: Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

184. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

185. Queensland Civil and Administrative Tribunal, Practice Direction No 7 of 2013: Arrangements for Applications for Orders to Resolve Other Issues About Trees, 2013.

     ↑

186. An AQF Level 5 arborist with 5 years of experience: Consultation 15 (Queensland Civil and Administrative Tribunal); Queensland Civil and Administrative Tribunal, Practice Direction No 7 of 2013: Arrangements for Applications for Orders to Resolve Other Issues About Trees, 2013, 1.

     ↑

187. Queensland Civil and Administrative Tribunal, Practice Direction No 7 of 2013: Arrangements for Applications for Orders to Resolve Other Issues About Trees, 2013, 2.

     ↑

188. This is a private meeting between the experts, chaired by a member of the Tribunal: see Queensland Civil and Administrative Tribunal, Practice Direction No 4 of 2009: Guide to Expert Conferences, 2009.

     ↑

189. See Ibid 1.

     ↑

190. Queensland Civil and Administrative Tribunal, Tree Disputes (Web Page, 29 February 2019) <http://www.qcat.qld.gov.au/matter-types/

     tree-disputes>.

     ↑

191. Queensland Arboricultural Association, About Approved Arborists (Web Page, 2018) <https://qaa.net.au/approved-arborist/>

     ↑

192. Resource Management and Planning Appeal Tribunal, Practice Direction No 12A: Expert Witness Code of Conduct’

     <https://www.rmpat.tas.gov.au/practice_directions>.

     ↑

193. Ibid; Resource Management and Planning Appeal Tribunal, Practice Direction No 12: Expert Witnesses <https://www.rmpat.tas.gov.au/practice_directions>.

     ↑

194. Resource Management and Planning Appeal Tribunal, Practice Direction No 12A: Expert Witness Code of Conduct
     
     <https://www.rmpat.tas.gov.au/practice_directions>; Resource Management and Planning Appeal Tribunal, Practice Direction No 12: Expert Witnesses <https://www.rmpat.tas.gov.au/practice_directions>.

     ↑

195. Submissions 12 (Dr Gregory Moore OAM), 25 (City of Boroondara); Consultations 2 (Dr Gregory Moore OAM), 10 (Baw Baw Shire Council), 12 (City of Port Phillip).

     ↑

196. Submission 12 (Dr Gregory Moore OAM).

     ↑

197. Submission 25 (City of Boroondara).

     ↑

198. Consultations 10 (Baw Baw Shire Council); 12 (City of Port Phillip).

     ↑

199. Consultation 10 (Baw Baw Shire Council).

     ↑

200. Submission 12 (Dr Gregory Moore OAM); Consultation 8 (City of Boroondara), 12 (City of Port Phillip).

     ↑

201. Submissions 2 (Name withheld), 4 (Name withheld), 7 (Ben Kenyon), 9 (Dr Karen Smith), 12 (Dr Gregory Moore OAM);

     Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 6 (Ben Kenyon), 8 (City of Boroondara),

     9 (Nillumbik Shire Council).

     ↑

202. Submission 21 (Pointon Partners Lawyers).

     ↑

203. Submission 7 (Ben Kenyon).

     ↑

204. Submission 12 (Dr Gregory Moore OAM).

     ↑

205. Consultation 14 (Robert Mineo).

     ↑

206. Submission 18 (ENSPEC).

     ↑

207. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

     ↑

208. Consultation 15 (Queensland Civil and Administrative Tribunal).

     ↑

209. Submissions 10 (Professor Phillip Hamilton), 12 (Dr Gregory Moore OAM), 18 (ENSPEC), 25 (City of Boroondara);

     Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 12 (City of Port Phillip).

     ↑

210. Submission 12 (Dr Gregory Moore OAM); Consultation 8 (City of Boroondara).

     ↑

211. Submission 25 (City of Boroondara).

     ↑

212. Submission 18 (ENSPEC).

     ↑

213. Submission 12 (Dr Gregory Moore OAM).

     ↑

214. Confidential submission.

     ↑

215. Submission 10 (Professor Phillip Hamilton).

     ↑

216. Consultation 8 (City of Boroondara).

     ↑

217. Consultation 9 (Nillumbik Shire Council).

     ↑

218. Ibid.

     ↑

219. Ibid.

     ↑

220. Consultation 14 (Robert Mineo).

     ↑

221. Consultations 4 (Participants in facilitated discussion at VTIO ArborCamp2018), 5 (Victorian Civil and Administrative Tribunal), 8 (City of Boroondara), 10 (Baw Baw Shire Council), 14 (Robert Mineo), 15 (Queensland Civil and Administrative Tribunal).

     ↑

222. Consultations 8 (City of Boroondara), 10 (Baw Baw Shire Council).

     ↑

223. Consultation 4 (Participants in facilitated discussion at VTIO ArborCamp2018). See also Council Arboriculture Victoria, Arboricultural Reporting Guidelines for Developments (Version 2.0, November 2009) <https://www.councilarboriculturevictoria.com.au/wp-content/uploads/2016/04/Arboricultural-Reporting-Guidelines-for-developments-Version-2.0-2009.pdf>

     ↑

224. Consultation 14 (Robert Mineo).

     ↑

225. Submissions 2 (Name withheld), 4 (Name withheld), 7 (Ben Kenyon), 9 (Dr Karen Smith), 12 (Dr Gregory Moore OAM); Consultations

     4 (Participants in facilitated discussion at VTIO ArborCamp2018), 6 (Ben Kenyon), 8 (City of Boroondara), 9 (Nillumbik Shire Council).

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226. Consultation 8 (City of Boroondara).

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227. See Quantified Tree Risk Assessment, Training in Quantified Tree Risk Assessment (Web Page, 2019) <https://www.qtra.co.uk/cms/index.php?section=124>.

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228. See International Society of Arboriculture, Credentials (Web Page) <https://www.isa-arbor.com/Credentials/ISA-Tree-Risk-Assessment-Qualification>.

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229. See Nelda P. Matheny & James R. Clark, A Photographic Guide to the Evaluation of Hazard Trees in Urban Areas (International Society of Arboriculture, 1 December 1993).

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230. National Register of Vocational Education and Training (VET) in Australia, Unit of Competency Details: AHCARB501A—Examine and Assess Trees (Release 2) (Database entry, 21 December 2017) <https://training.gov.au/Training/Details/AHCARB601>.

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231. ENSPEC, ‘Visual and Hazard Tree Assessments’, Consultancy (Web Page, 2019) <http://www.enspec.com/Consultancy/VisualTreeAssessments.aspx>.

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232. Submission 12 (Dr Gregory Moore OAM).

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233. Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).

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234. Skills Impact, Amenity Horticulture, Landscaping, Conservation & Land Management Industry Reference Committee (Web Page, 2019) <https://www.skillsimpact.com.au/horticulture-conservation-and-land-management/training-package-projects/arboriculture-project/>.

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235. Victorian Civil and Administrative Tribunal, Practice Note PNVCAT2: Expert Evidence, 1 October 2014, 3; see also Victorian Civil and Administrative Tribunal Act 1998 (Vic) sch 3.

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236. Victorian Civil and Administrative Tribunal 1998 (Vic) sch 3; see also Victorian Civil and Administrative Tribunal (VCAT), VCAT Practice Note PNVCAT2: Expert Evidence, 1 October 2014, 6.

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237. Consultation 4 (Participants in facilitated discussion at VTIO ArborCamp2018).

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238. Victorian Civil and Administrative Tribunal, Practice Note PNVCAT2: Expert Evidence, 1 October 2014.

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239. Council Arboriculture Victoria, Arboricultural Reporting Guidelines for Developments (Version 2.0, November 2009).

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240. The categories must be explained in the report (ie good, fair, poor etc) and the descriptors listed in the appendix at the end of the report: Ibid 2.

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241. As a guide, trees that have ‘high’ value should be retained and trees that have ‘low’ value may be unsuitable for retention: Ibid 3.

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242. Consultation 12 (City of Port Phillip).

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243. Submission 9 (Dr Karen Smith); Consultations 6 (Ben Kenyon), 8 (City of Boroondara), 9 (Nillumbik Shire Council), 12 (City of Port Phillip).

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244. Consultations 8 (City of Boroondara), 12 (City of Port Phillip). As discussed in Ch 5, the Commission is not recommending a compensation scheme for personal injury under the new Act,

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245. Submission 9 (Dr Karen Smith); Consultations 8 (City of Boroondara), 9 (Nillumbik Shire Council), 12 (City of Port Phillip).

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246. Land and Environment Court of New South Wales (NSWLEC), Practice Note Class 2: Tree Applications, 1 December 2018, sch B.

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