Paper

Brisbane’s Natural Assets Local Law - Caesar judging Caesar

By David Nicholls / 19 December 2018

The Brisbane City Council’s Natural Assets Local Law (NALL), if it were an Act passed by the Queensland Parliament, would not meet fundamental legislative standards.1 Legislation should have sufficient regard to the rights and liberties of individuals. Whether it does so depends upon whether the legislation makes rights and liberties, or obligations, dependent upon administrative power only if the power is sufficiently defined and subject to appropriate review. It also depends upon whether the legislation is consistent with the principals of natural justice, and is unambiguous and drafted in a sufficiently clear and precise way. The NALL is not consistent with these principles.

It was stated in a paper which the writer authored with Olivia Williamson on 22 April 2016 (the earlier paper) that the NALL was uncertain in its reach, unfair in its implementation and ought to be reformed. My conclusion after investigating instances of the administration and implementation of the NALL is that it strips away citizen’s rights to manage vegetation on their properties in a sensible way for safety and risk purposes, without any recourse to a fair and impartial review in respect of decisions refusing permits to remove vegetation.

While the NALL permits trees to be removed without a permit where the whole trunk is within six metres of a house on land having an area more than 4,000 square metres (or three metres in the case of a house on land having an area less than 4,000 square metres), it is clear that applications to remove trees for safety reasons that are outside the applicable distance will be routinely refused unless the tree is structurally unsound. 

Queensland residents have recently witnessed severe bushfire conditions with devastating uncontrolled fires destroying property that was not adequately protected by fire breaks. It is obvious the trees that are close to houses, regardless of their structural integrity, can impose unacceptable risks of personal and property damage in the event of severe storms or bushfires. If a large tree is capable of hitting a house, or showering it with burning branches and embers, the right to remove that tree ought not to be subject to bureaucratic veto, without any recourse to a truly independent review. That is, unfortunately, the current position under the NALL.

The process for gaining permission to remove a tree under the NALL is complex, slow, and with no certainty regarding outcome. Moreover, citizens’ concerns about the potential for a tree to cause serious damage is likely to receive little or no weight in the process of assessing and deciding applications for removal permits. In contrast, however, if a citizen were to obtain a development approval for an extension to a house or other structure, an application to remove a tree that is in the way of the building would very likely have to be approved.

An explanation of the reasons for this unsatisfactory state of affairs requires more detailed consideration of certain aspects of the NALL. The general content of the NALL and its modus operandi were explained in the earlier paper. The conclusion to that paper was that, while the objectives of the NALL were supported, its methodology was indiscriminate, inefficient and unfair, and in need of a reform. The focus of this paper is the injustice caused by the absence of meaningful appeal rights coupled with the NALL’s associated lack of legal certainty.

The Council is given unconstrained power to approve or refuse an application for a permit to remove protected vegetation.2 Moreover, the council is not obliged to consider stated criteria. Rather, it has discretion as to whether it considers the criteria. Section 21 of the law commences with the words “Council may consider every application having regard to ….”. The section then lists the following criteria:

  • the extent to which the proposed interference conflicts with the objects of this local law;
  • the environmental impact of the proposed interference;
  • the purpose to be served by the proposed interference;
  • whether there is any prudent and feasible alternative to the proposed interference;
  • any applicable Commonwealth, State or Local Government plans, standards, agreements or requirements;
  • the public interest; and
  • such additional criteria as the council may specify by subordinate local law.

There is no subordinate local law specifying additional criteria.

One of the objects of the local law is “The control of hazardous vegetation”. The NALL unhelpfully contains no definition of “hazardous vegetation”. The ordinary meaning of hazardous is “attended by hazard or risk”.3  One meaning of hazard is “risk of loss or harm; peril; jeopardy”. 4

Focusing on an application for a permit to remove a single tree out of concern about where it, or burning leaves and branches might fall, there is tension between the objectives in section 2(1)(a) which deals with loss of biodiversity and section 2(2) concerning the control of hazardous vegetation. There is nothing in the NALL that requires a tree to be structurally unsound in order for it to be hazardous - that arises through unwritten policy implemented by Council. On the contrary, there should merely be a risk of loss or harm, whatever the cause. 

As we all know, Brisbane periodically experiences severe storms with cells producing extremely strong winds that have the potential to uproot trees, tear off branches or snap their trunks. Furthermore, the heavily vegetated outer suburbs of Brisbane are not immune from severe bush fires. Where a tree is blown over or set alight through a bushfire (with a height that exceeds or is close to its distance from a house), the potential for loss or damage is greater than in the case of trees that are further away from the house. That is logical and a matter of common sense. On the other hand, the loss of a single tree, particularly for example a common variety of eucalypt, cannot have any measurable impact on the biodiversity values of the City in terms of section 2(1)(a) of the NALL. Likewise, it can have no significance in terms of natural land form or landscape character where it is growing in a garden near a house, and where there are many other trees on the property more distant from the house.

In the above context, the Council’s clear policy position, regularly implemented, is that it will refuse permission to remove such trees.

Section 28 of the NALL provides for a right of internal review of a decision to refuse to give a permit. However, it is a right of review which is extremely restricted in its scope and operation. There are three available grounds for requesting a review:

  • “that procedures that were required by law to be observed in connection with the making of the decision were not observed;
  • that there was no evidence or other material to justify the making of the decision;
  • that the making of the decision was an improper exercise of the power conferred by this local law.” (my emphasis)

The first of these potential grounds is limited to procedural error on the part of the Council in processing the relevant application. It is unlikely to have any practical application as the officers who administer the NALL are all well skilled in its operation and in how to process an application for a permit.

The second potential ground, in effect, reverses the onus of proof. No matter what evidence or material the applicant puts before the council, if there is any evidence at all held by the council (and there always will be based upon the deciding officer’s site inspection and notes) then this ground is not available.

The third ground requires, in effect, evidence of abuse of the powers reposed in the decision maker. Because of the broad scope of the NALL’s objects (which are in turn linked to the definitions of the various classes of protected vegetation) it is unlikely that it could ever be proved that a decision to refuse a permit was an improper exercise of power.

Therefore, the internal review process does not in any material sense allow the merits of the original decision to refuse the permit to be reviewed independently. While the review is handled by a different council officer of similar seniority as the original decision maker, section 28(5) requires the decision to be returned for consideration by the original decision maker if, and only if, the council is satisfied:

  • legal procedures were not observed;
  • there was no evidence to justify the decision; or
  • there was an improper exercise of the power.

These legal hurdles mean that original decisions will likely never be reconsidered on the merits. Further, even if there was a significant legal error of the type mentioned above as reflected in sections 28(2) and 28(5), reconsideration is likely to result in exactly the same outcome because there is no right to have further material or submissions considered by the original decision maker.

Section 28A provides a right to a second review, but this will only ever arise where the legal hurdles referred to above are overcome and actually result in a decision being sent for reconsideration by the original decision maker.

The NALL has been drafted with the clear intention of denying aggrieved applicants any form of independent review of an application on the merits, i.e. based upon evidence. The drafting of these provisions of the NALL provide for internal judicial review rather than internal reconsideration of the original decision, taking into account all relevant facts, including new evidence placed before the council by an applicant. These provisions are, in truth, an exercise in obfuscation, as they are designed to severely limit review in any material sense, thereby entrenching the power of the officer decision makers.

As mentioned in the original paper, there are no rights of appeal to the Planning & Environment Court, nor to any other tribunal or body in respect of a decision to refuse a permit application or a review decision. While an application for judicial review may be made to the Supreme Court of Queensland, it is a costly exercise where the removal of a tree is concerned, and is not available to challenge the merits (i.e. factual findings) of the council’s decision. Rather, it is restricted to legal administrative errors.

The NALL has been drafted so as to make the decisions of the bureaucracy virtually unreviewable. The internal review process effectively permits the council to review its own decisions, which are unlikely to change for the reasons outlined above. This is a completely unsatisfactory process because it places the opinions of bureaucrats above the common sense of residents who are best placed to manage the risks they face on their properties from storm and bushfire.

Returning to the list of standards referred to at the commencement of this paper, the NALL does not make rights and liberties, or obligations, of citizens dependent upon the exercise of bureaucratic power, only where the power is sufficiently defined and subject to appropriate review. In the instance of the NALL, powers are defined very broadly and the review process that has been provided is completely inappropriate. There is no right of independent review or appeal to an external body, such as a court, so as to provide a check and balance on the arbitrary exercise of the power to grant permits.

In conclusion, it is worth mentioning a bizarre, almost pythonesque aspect of the NALL, which is that there is an exemption from having to obtain a permit to remove a tree that is half blown over, where adequate photographic evidence is provided after the event.5  However, if the tree is blown completely over, then that’s just the luck of the draw. 


1. Legislative Standards Act 1992 s4(3)
2. See section 20 of the NALL
3.Shorter Oxford Dictionary
4. ibid
5. NALL section 44(1)(b). An example in this section of the NALL is “leaning tree(s) with soil upheaval”.

Authors
David Nicholls
Consultant
David is a Consultant in our Planning and Environment practice and enjoys a reputation as one of Australia’s leading planning and environment lawyers.
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