Page 4733 - Week 13 - Tuesday, 31 October 2017
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Merits review of certain decisions is provided for in the Tree Protection Act. Merits review is within the purview of the ACT Civil and Administrative Tribunal, ACAT. It was ACAT that identified that the merits review mechanism contained in the Tree Protection Act did not properly identify those people with an interest in a decision to register or deregister a tree. Merits review tests that a decision is correct and preferable, that is, legally correct and preferable in that the decision settled upon is the best that can be made on the basis of relevant facts.
The identification was made by the tribunal that the words “the person who holds registration” currently contained in the act results in no exercisable right of review. This is because the registration of a tree is not held by anyone, the details of the tree merely being entered into a register by the conservator. The bill under clause 5 addresses this issue by correcting the anomaly and properly identifying those people or entities that have an interest and a statutory right to seek review of certain decisions made under the act.
Clause 5 makes changes to schedule 1 of the act, which identifies the decisions that are reviewable and who can seek review. The decisions that are reviewable are decisions under section 52 to approve or refuse to approve registration of a tree and, under section 58, to cancel or refuse to cancel registration of a tree. The people who will now have the right to merits review are consistent with the entities that the conservator is required to consult with when making decisions under section 55 and section 58.
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.
Merits review is directed towards the circumstances of a particular person or legal entity. Decisions that affect the community more generally are considered unsuitable for review because they dilute the rights of those that have a demonstrable interest in the outcome of the decision. Extending standing to a broader group of people, such as any interested or affected public or community group or other businesses in the neighbourhood, will diminish the rights of those who have a direct interest in the matter. The identification of these people and entities who have access to merits review is considered appropriate. It gives expression to the intentions of the legislation and to the principles of natural justice and procedural fairness.
The bill also includes a new provision which provides the Conservator of Flora and Fauna with discretion to remove a tree from the register when that tree has died from natural causes. The bill provides the conservator with a discretion to determine when it should be applied. New division 7.4 to the act covers this.
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