Normans Alert

Regulated Trees Update

The Development (Regulated Trees) Amendment Act 2009 and the Development (Regulated Trees) Variation Regulations 2011 came into force on 17 November 2011.

Notice of motion to disallow the Regulations

On 23 November 2011, the Honourable Michelle Lensink MLC gave notice of a motion to disallow the regulations.  Ms Lensink’s speech in support of the motion was critical of various aspects of the regulations.  A transcript of Ms Lensink’s speech can be accessed by clicking here.

The motion is in the parliamentary notice paper for debate in the Legislative Council on 15 February 2012.  The new regulations will remain in force unless and until the motion is passed.

If the motion is passed, the regulations will be disallowed and will immediately cease to have effect, in which case the Development Regulations will revert back to how they were immediately before the new regulations came into effect.  This would obviously create uncertainty because the amendments to the Act would remain in force, but without regulations to give effect to some of the key changes.

We will continue to keep you informed as matters progress.

Status of Aleppo pine trees

There has been some confusion regarding the status of Aleppo pine trees under the new regime.

The confusion arises from the exclusion contained in regulation 6A(5)(c) of the Development Regulations, which excludes “a tree belonging to a class of plants to which a declaration by the Minister under Chapter 8 Part 1 of the Natural Resources Management Act 2004 applies.”

Chapter 8 Part 1 of the NRM Act permits the Minister to declare that certain sections of the NRM Act will apply to a specific ‘class of plants’.  In addition, the Minister may also declare that a specific area is a ‘control area’ for that ‘class of plant’.

“Aleppo Pine – Pinus halepensis (not planted and maintained for domestic or commercial use)” is declared as a class of plant for the purposes of sections 182(2)(3) and 185(1) of the NRM Act.  Several Council areas are declared as ‘control areas’ for that class of plant.

While the issue is not entirely beyond doubt, it is our view that the exclusion in regulation 6A(5)(c) applies throughout the whole of the state (not just in control areas) to all Aleppo pine trees that have not been planted and maintained for domestic or commercial use.

Whether the tree has been “planted and maintained for domestic or commercial use” is a question of fact. In that regard, Councils may need to carefully consider the available evidence. It may be necessary to seek advice from a qualified arborist.

If an Aleppo pine has been both planted and maintained for domestic or commercial use, it will fall outside the scope of the exclusion in regulation 6A(5)(c), and it may be a regulated tree.

Handy guide for determining if a tree is controlled or not

The recent changes have made regulated tree matters more complicated.

There are now 4 or 5 different places in the Act and Regulations that one must look to determine if a tree is controlled or not. 

To help you “see the wood for the trees”, Norman Waterhouse has prepared a handy colour-coded one-page guide.  Just click here to access and download!

Free 4 O’clock Forum

Limited places remain for the free 4 o’clock forum to be held on Thursday, 15 December 2011 at 4 pm at which David Billington will discuss the recent changes.  Book now by emailing rsvp@normans.com.au.

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