Page 3314 - Week 09 - Thursday, 24 August 2017
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following a full consultation process to cancel registration, despite the death of a tree. This will be appropriate where it is not clear whether the tree’s death has been natural.
The second part of the bill makes amendments to the act that are of perhaps greater significance to individuals affected by the act. The amendments correct an anomaly in the act that was identified in a matter heard by the ACT Civil and Administrative Tribunal. The act currently provides that the person who holds or held registration of a tree can seek a review of a decision to cancel, or refuse to cancel, registration of a registered tree. These words are contained in the Tree Protection Act at schedule 1, part 1.2, item 2.
The presidential member who heard the matter found that the words “the person who holds or held registration” is defective, because registration is not held by anyone. Rather, registration refers to the tree’s entry into the register of trees as held by the conservator. The anomaly can be traced to consequential amendments as a result of changes to the hearing of reviewable decisions when ACAT was established. As a result of the defect in the act, there is currently no exercisable right of merits review in reference to a decision made by the conservator to cancel or refuse to cancel registration of a tree. The tribunal found that as no person held or holds registration, there can be no person to whom such rights can be assigned.
The amendment contained in the bill that I have tabled today corrects this anomaly by providing a reviewable right to certain people or entities on decisions about registration. The entities are consistent with the entities that the conservator is required to consult with under section 53 of the act when making decisions to approve or refusing to approve the registration of a tree, and, under section 56, when the conservator makes a decision to cancel or to refuse to cancel the registration of a tree.
Specifically, those entities to which the right of merits review is given are: the person who nominated the tree for registration or the person who proposed the cancellation depending on the decision to which review is sought; the lessee of the land where the tree is located or alternatively the land management agency responsible for the land; if the tree is on leased land, the lessees or land management agency responsible for land that adjoins the land where the tree is located and which is within 50 metres of the tree; and, if the Heritage Council gave advice, the Heritage Council.
The bill does not extend the right of merits review to other people who may provide written comments to the conservator about a proposal to register or cancel the registration of a tree. Nor does it extend to any person that the conservator, exercising their discretion, notifies about such decisions.
It is appropriate that merits review be extended only to those people with a direct interest in the decision and in this case that direct interest can be identified as a proprietary interest in land potentially impacted by the decision. Madam Speaker, I commend the bill to the Assembly.
Debate (on motion by Ms Lee) adjourned to the next sitting.
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