Trees (Disputes Between Neighbours) Bill
Clauses 1 to 11 agreed.
Ms SYLVIA HALE [3.39 p.m.], by leave: I move Greens amendments Nos 1 to 5 in globo:
No. 1 Page 6, clause 12. Insert after line 16:
(d) any contribution of the tree to the urban forest as a primary component of the urban ecosystem,
No. 2 Page 6, clause 12. Insert after line 23:
(h) the contribution of the tree to the community, including improved health and well being, and reduced stress, aggression, violence and crime,
(i) the contribution of the tree to the environment through energy savings provided by shade and evapotranspiration, air pollution removal, carbon storage and sequestration, stormwater runoff prevention and water quality improvement,
No. 3 Page 6, clause 12, line 33. Omit all words on that line. Insert instead:
(iii) a report in relation to the likelihood of any such damage being caused by the tree, prepared by an appropriately qualified and experienced arborist who is appointed by the Court and is independent of the applicant,
No. 4 Page 7, clause 12, line 2. Omit all words on that line. Insert instead:
which the tree is situated to prevent any such injury, and
(iii) a report in relation to the likelihood of any such injury being caused by the tree, prepared by an appropriately qualified and experienced arborist who is appointed by the Court and is independent of the applicant,
No. 5 Page 7, clause 12. Insert after line 4:
(2) In this section:
urban forest means the totality of trees and shrubs on all public and private land in a locality (including bushland, parkland, gardens and street trees).
Although somewhat disappointed, I am not surprised that the Government will not support the amendments. I would have thought that the amendments are extraordinarily non-contentious and add merit to the bill. I know the Government's line in relation to urban forests and requiring a court to take additional factors into consideration will be that those matters are adequately covered by the bill, but I do not agree.
Greens amendment No. 1 will enable the court to take into consideration any contribution of the tree to the urban forest as a primary component of the urban ecosystem. Amendment No. 5 provides a definition of urban forest as the totality of trees and shrubs on all public and private lands in all localities, including bushland, parkland, gardens and street trees. A notion that seems to have been encapsulated by Harry Triguboff—that if people want to see trees, they should go to the Blue Mountains—seems to have been subsumed into a proposition that in an urban area, trees are an optional extra. Trees play an extraordinarily important part in urban environments by providing shade and coolness as well as anaesthetic and psychological comfort. Trees often have a very calming effect on people.
The Hon. Charlie Lynn: We should have one in here!
The Hon. Duncan Gay: We already do!
Mr Ian Cohen: It could be the Tree of Knowledge.
The Hon. Greg Pearce: As long as there are no lamp-posts!
Ms SYLVIA HALE: Obviously, trees are a source of great comfort from a variety of perspectives! The notion of an urban forest is a relatively new one, but it has been embraced overseas. As I was saying, at a time when we are looking at ways to reduce energy usage, trees are an extraordinarily important environmental component. Greens amendment No. 1 seeks to introduce the contribution trees make to the environment into considerations to be taken into account by the Land and Environment Court.
Greens amendment No. 2 adds two considerations and suggests that the court should consider the contribution of the tree to the community, including improved health and wellbeing and reduced stress, aggression, violence and crime, and the contribution of the tree to the environment through energy savings provided by shade and evapotranspiration, air pollution removal, carbon storage and sequestration, stormwater runoff prevention and water quality improvement. The amendment reflects extraordinarily topical elements. If trees make a contribution, and I believe it is almost incontrovertible that they do, that is a very relevant factor for the court to consider. The reason for considering the first factor is that some studies link the presence of trees not only to cleaner air but also to less stress, aggression and crime, although there is probably also a socioeconomic correlation between the leafier areas and socioeconomic status.
It is true that trees contribute to the community and wellbeing. In the nineteenth and twentieth centuries, the designers of mental hospitals, such as Callan Park and Gladesville mental hospitals, recognised the link between the therapeutic aspects of natural settings and mental health. That is why the State's older mental hospitals are almost always situated within parkland settings.
The CHAIR: Order! Members are reminded that interjections are disorderly at all times. I ask members to refrain from engaging in conversation with one another across the Chamber. Members with the call should confine their comments to amendments moved to the Trees (Disputes Between Neighbours) Bill.
Ms SYLVIA HALE: One of the breakthroughs in the treatment of psychiatric patients was the perception of the usefulness of the natural environment in assisting people's restoration to health, and New South Wales led the charge. At Callan Park currently, one of the great concerns is not only that Callan Park or the Rozelle psychiatric hospital continue to be used as mental health facilities, but also that the park as a whole continue to be accessible both to patients and to the community.
Greens amendment No. 3 adds a subparagraph dealing with an applicant's claim that a tree may cause damage to property and enabling the court to take into consideration a report, in relation to the likelihood of any such damage being caused by the tree, that has been prepared by an experienced arborist appointed by the court and independent of the applicant. The amendment seeks to enable the court to refer to such a report. I have no doubt the Government will argue that requiring an arborist's report will add to the cost of any action and that that should not be encouraged. The Government may also argue that the Land and Environment Court assessors are adequately trained and can be relied upon to do a good job. But anyone who is familiar with the assessors of the Land and Environment Court would be very aware of how inconsistent and often contradictory are their decisions compared to those of other assessors. When it comes to a matter that is as important as a decision on whether or not to remove a tree, it is absolutely important to obtain expert opinion instead of relying on misplaced misconceptions or unfounded fears.
Greens amendment No. 4 adds new subparagraph (iii) to the provision dealing with an applicant's claim that a tree may cause injury, adding that the court may consider a report in relation to the likelihood of any such injury being caused by the tree that has been prepared by an appropriately qualified and experienced arborist who is appointed by the court and is independent of the applicant. In common with amendment No. 3, this amendment seeks to enable a court to consider any arborist reports that are prepared. During the second reading debate I drew attention to the fact that fatalities directly attributable to trees are almost negligible—one in the past 10 years. Although that does not mean there is a fear among the community that trees are excessively dangerous, the Greens are concerned that any such fear may lead to decisions to remove or to lop trees to within an inch of their lives on an unfounded basis. The Greens take the view that any orders by a court should be based upon expert evidence in relation to the matter rather than being based on unfounded fears.
Greens amendment No. 5 provides that the definition of "urban forest" is "the totality of trees and shrubs on all public and private land in a locality, including bushland, parkland, gardens and street trees". The amendment explains the intention of amendment No. 1 in defining an urban forest. It certainly does not change the intent of the bill, but simply amplifies it. The Greens believe the amendments are well worth the support of the Committee.
The Hon. ROBERT BROWN [3.50 p.m.]: That sounded like a second reading speech to me. The Shooters Party could not possibly support any of the amendments that are proposed to a bill that seeks to make it more efficient for the Land and Environment Court to consider certain issues. Putting concepts such as urban forests into legislation is really another Greens backdoor attempt at getting their way with anything that grows. In urban Sydney many trees were planted 30 or 40 years ago because everyone agreed—as I do—that there should be more trees in Sydney. But they were inappropriate trees.
On the boundary of the property on which I currently reside there is a Sydney blue gum. Its location is totally inappropriate. My elderly widower neighbour is in constant stress about it. To argue that a court should determine the contribution of a tree—because it is part of an urban forest—to improved health and wellbeing, and reduced stress, aggression, violence and crime, ignores the stress on a person or neighbour who is trying to solve a problem caused by a tree. That should be the primary concern. The one thing I am pleased to hear the Greens say is that trees contribute to senses of wellbeing and reduced stress, aggression, violence and crime. That is why hunters spend most of their time out amongst the trees! We are very non-aggressive people. With regard to expert evidence being given in court cases, I am pretty sure that happens now.
Mr Ian Cohen: Are you the people shooting each other in the streets of Sydney?
The Hon. ROBERT BROWN: No, they are the young gentlemen with their hats on backwards, mate. You have us confused with others. I could not support any of these amendments; they are sneaky, Green amendments rather than anything that will contribute to the effectiveness of the amended bill.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [3.53 p.m.]: The Government does not support the Greens amendments. Before making a determination on an application under this legislation, the Land and Environment Court must consider a number of factors relating to the value of the tree in question, to both the local ecosystem and to public amenity generally. The amendments seek to include in clause 12 a number of other factors that the court would be required to consider. The amendments propose to amend clause 12 of the bill to require the court to consider further factors including improved health and wellbeing, and reduced stress, aggression, violence and crime. The Government believes these factors are already addressed by clause 12 (c) of the bill, which requires the court to consider whether the tree has any historical, cultural, social or scientific value. The amendment is therefore unnecessary.
The amendments to clause 12 of the bill would require the court to consider also any contribution of the tree to the urban forest as a primary component of the urban ecosystem and the contribution of the tree to the environment through energy savings provided by shade and evapotranspiration, air pollution removal, carbon storage and sequestration, stormwater runoff prevention and water quality improvement. These amendments are not supported. While the urban tree canopy plays an important role in reducing air pollution, it is unreasonable to expect the court to make an assessment based on such far-reaching criteria.
Other amendments to clause 12 of the bill appear to be directed at ensuring that any determination of the court relating to any damage or likely damage to property or the likelihood of injury to a person resulting from a tree is based upon sound, independent advice. The amendments would require the court to consider a report in relation to the likelihood of any damage or injury being caused by a tree prepared by an appropriately qualified and experienced arborist who is appointed by the court and is independent of the applicant. The amendments are unnecessary.
The Land and Environment Court already has a number of commissioners who have a range of expertise relevant to determining applications under the proposed legislation. The court has also advertised for a number of acting commissioners who will either act alone, with other commissioners or with a judge to determine applications under the legislation. Commissioners may have expertise in such matters as engineering, planning law, local government, ecology, native vegetation and arboriculture. Any one of those may be relevant to determining an application under the proposed legislation. Where a matter can be determined by an appropriately qualified commissioner or commissioners or by a judge assisted by an appropriately qualified commissioner, it will not be necessary to obtain a report prepared by an arborist.
The circumstances where the court may appoint an arborist will be addressed in the rules of the court and/or regulations under the legislation. Requiring a separate arborist's report to be obtained in every case would incur additional costs, and such a requirement is not supported. The amendments, whilst well intentioned, are too broad in scope and unnecessary. The Government does not support the amendments.
The Hon. GREG PEARCE [3.56 p.m.]: The Opposition cannot support the amendments.
Mr Ian Cohen: You hate trees, don't you?
The Hon. GREG PEARCE: I acknowledge that disgraceful interjection by the very self-righteous Green. These amendments are not about whether people are in favour of or against trees. For the record, members of the Coalition are very much in favour of trees, Mr Cohen, you self-righteous pris. You really are a disgrace and you should absolutely back off occasionally and treat other people with a bit of respect—respect that you quickly claim for yourself whenever anybody has a go at you.
Reverend the Hon. Fred Nile: Point of order: The member should withdraw the term he just used in describing Mr Ian Cohen. I have not heard that word used in the House before.
The Hon. GREG PEARCE: To the point of order: If the member wanted to object, he could object.
Reverend the Hon. Fred Nile: I am speaking on behalf of the standards of behaviour in the House.
Mr Ian Cohen: To the point of order: I appreciate the support from Reverend the Hon. Fred Nile. Perhaps the member who made the statement could explain what a "pris" is, then I would be in a position to know whether it is unparliamentary or not.
The Hon. Duncan Gay: To the point of order: I think there was a misunderstanding. The word that was used was "pris", not some other word.
Mr Ian Cohen: Can you define "pris"?
The Hon. Duncan Gay: A prissy. A big sook, with a glass jaw!
The CHAIR: Order! It would be in order for Mr Ian Cohen to ask for a withdrawal if he found the term offensive. However, another member may not seek a withdrawal on his behalf.
The Hon. GREG PEARCE: As I began saying, the Opposition does not support the amendments because they are simply inappropriate in a bill that is attempting to deal with an important problem that is important to many people—that is, the issue of trees on neighbouring boundaries. It is inappropriate for the Greens, whatever their motives, to introduce this quite novel and new idea—and I am not making a judgment of whether this is good or bad—in a bill that is about changing the way that people deal with neighbourhood disputes.
It does not give people an opportunity to consider whether these amendments are good or bad, and it does not give people the context within which they can understand them. I indicated earlier in debate that I was not convinced that these amendments to Land and Environment Court provisions were really a step in the right direction. I also said earlier that Opposition members would wait and see whether it worked. I do not think that the changes suggested in amendments Nos 3 and 4 would help at all by bringing in another layer of cost and dispute. If the independent arborist were required, both parties would then have to get expert evidence to dispute what the court had already heard.
When dealing with these sorts of disputes, in the view of the Opposition the cost, extra delay and complexity of it all is not warranted. I would be interested to hear what the Greens think about the independent arborists. Where were the Greens when those arborists ganged up with Clover Moore to set up and launch their armies of chainsaws into Hyde Park and the Domain at midnight? That was based on those same independent arborists. The Government should rethink provisions in the bill relating to independent aborists, chat to Clover Moore, and set her straight on independent arborists before she sends in more armies of chainsaw-wielding gangs to chop down trees.
Clause 12 agreed to.
Clauses 13 and 14 agreed to.
Clauses 15 to 23 agreed to.
Schedule 1 agreed to.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [4.08 p.m.]: I move Government amendment No. 1:
No. 1 Page 14, schedule 2. Insert after line 5:
 Section 34A Proceedings to which on-site hearing procedures apply (as amended by the Crimes and Courts Legislation Amendment Act 2006)
Insert at the end of section 34A (1):
(f) proceedings in Class 2 of the Court's jurisdiction that are brought under section 7 of the Trees (Disputes Between Neighbours) Act 2006.
This amendment addresses an unintended omission in the drafting of certain provisions relating to the Land and Environment Court Act 1979. This amendment is consistent with Government amendments to the Crimes and Courts Legislation Amendment Bill. Applications made under the Trees (Disputes Between Neighbours) Bill may be dealt with by way of an informal preliminary conference under section 34 of the Act, unless the court directs otherwise. A preliminary conference enables conciliation. The commissioner meets with litigants to discuss the issues and assists them to reach an agreement. The commissioner, having been trained in tree matters, will provide expert advice.
It is proposed to amend section 34A of the Land and Environment Court Act to provide that, where matters are not disposed of at a preliminary conference, they are to be dealt with by means of an on-site conference presided over by a single commissioner. At the conclusion of the conference, the commissioner may make a ruling and must give reasons for his or her decision. Where the matter proceeds to a court hearing a report is provided to the court setting out the commissioner's views as to the issues in the dispute. Court hearings may also be held on site. The process provided for by the amendment will help distil the matters at issue in the dispute. It will promote alternative dispute resolution and maximise opportunities to avoid legalistic and adversarial proceedings. Given the nature of disputes involving trees, it is critical for the court to be able to utilise the processes, as provided for by the amendment.
The Hon. GREG PEARCE [4.04 p.m.]: The Opposition does not oppose this amendment. It makes eminent sense that if the Land and Environment Court were to be the venue for these hearings, on-site hearings would, for the reasons outlined by the Minister, make them much more efficacious.
Amendment agreed to.
Schedule 2 as amended agreed to.
Title agreed to.
Bill reported from Committee with an amendment and passed through remaining stages.