Australian Capital Territory Bills
[Index]
[Search]
[Download]
[Related Items]
[Help]
This is a Bill, not an Act. For current law, see the Acts databases.
TREE PROTECTION BILL 2004
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Environment)
Tree
Protection Bill 2004
Contents
Page
Part
1.1 Administrative Appeals Tribunal Act
1989 65
Part 1.2 Land
(Planning and Environment) Act 1991 65
Part 1.3 Roads and
Public Places Act 1937 67
Part 1.4 Utilities
Act 2000 67
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Environment)
Tree Protection Bill
2004
A Bill for
An Act for the protection of trees, and for other
purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Tree Protection Act 2004.
This Act commences on the day after its notification day.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
(1) The objects of this Act are—
(a) to protect individual trees in the urban area that have exceptional
qualities because of their natural and cultural heritage values or their
contribution to the urban landscape; and
(b) to protect urban forest values that may be at risk because of
unnecessary loss or degradation; and
(c) to protect urban forest values that contribute to the heritage
significance of an area; and
(d) to ensure that trees of value are protected during periods of
construction activity; and
(e) to promote the incorporation of the value of trees and their
protection requirements into the design and planning of development;
and
(f) to promote a broad appreciation of the role of trees in the urban
environment and the benefits of good tree management and sound arboricultural
practices.
(2) In this section:
urban forest means the trees located in the built-up urban
area.
urban forest values means the amenity and economic and
environmental benefits derived from the urban forest and the associated tree
canopy cover.
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere.
For example, the signpost definition ‘heritage
significance—see the Heritage Act 2004, section 10.’
means that the term ‘heritage significance’ is defined in that
section and the definition applies to this Act.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
6 Offences
against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
7 Application
of Act—built-up urban areas
(1) This Act applies to trees on land in built-up urban areas.
(2) A built-up urban area is an area of land declared, in
writing, by the Minister to be a built-up urban area for this Act.
(3) A declaration is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
For this Act, each of the following is a protected tree:
(a) a registered tree;
(b) a regulated tree.
A registered tree is a tree that is registered (or
provisionally registered) under part 7 (Registration of trees).
10 Regulated
trees and tree management precincts
(1) A regulated tree is a living tree (other than a
registered tree or a palm tree) that is on leased land within a tree management
precinct and—
(a) is 12m or more high; or
(b) has a trunk with a circumference of 1.5m or more, 1m above natural
ground level; or
(c) has 2 or more trunks and the total circumference of all the trunks, 1m
above natural ground level, is 1.5m or more; or
(d) has a canopy 12m or more wide.
(2) However, a tree is not a regulated tree if it is declared to be a pest
plant under the Land (Planning and Environment) Act 1991,
section 261.
(3) A tree management precinct is an area declared under
part 5 to be a tree management precinct.
(4) In this section:
leased land means leased Territory land, other than land
leased for rural purposes, or purposes including rural purposes.
11 Protection
zone for protected tree
(1) The protection zone for a protected tree
is—
(a) the area under the canopy of the tree; and
(b) the 2m wide area surrounding the vertical projection of the canopy;
and
(c) the 4m wide area surrounding the trunk as measured at 1m above natural
ground level.
(2) However, if another protection zone is defined in a tree management
plan in force for the protected tree, that protection zone is the
protection zone for tree.
Part
3 Protection of
trees
Division
3.1 Definitions for pt
3
In this part:
damage, a protected tree, includes the following:
(a) killing or destroying the tree;
(b) poisoning the tree;
(c) ringbarking the tree (whether partially or completely);
(d) felling or removing the tree;
(e) cutting branches or stems of the tree between branch unions
(lopping);
(f) removing branches of the tree to a previously pruned or lopped point
(pollarding);
(g) doing major pruning of the tree;
(h) doing anything else to or in relation to the tree
that—
(i) causes it to die; or
(ii) significantly reduces its expected life; or
(iii) significantly and adversely affects its health, stability or general
appearance.
13 Meaning
of major pruning
(1) In this part:
major pruning means pruning other than lopping, pollarding or
minor pruning.
(2) In this section:
minor pruning, of a registered tree, means pruning (other
than lopping or pollarding) done in accordance with AS 4373
that—
(a) only involves removing deadwood; or
(b) does not involve removing any limbs that have a diameter greater than
50mm; or
(c) is the first pruning of the tree in the calendar year, affects less
than 10% of the canopy and does not alter the overall shape of the
canopy.
minor pruning, of a regulated tree, means pruning (other than
lopping or pollarding) done in accordance with AS 4373 that—
(a) does not adversely affect the general appearance of the tree;
or
(b) for a fruit tree—is done for fruit production.
14 Meaning
of prohibited groundwork
In this part:
prohibited groundwork—a person does prohibited
groundwork in the protection zone for a protected tree if the
person—
(a) contaminates the soil in the protection zone with something that is
poisonous to trees; or
(b) cuts any of the tree’s roots in the protection zone that have a
diameter greater than 50mm; or
(c) does either of the following in the protection zone, other than in
cultivating the soil for horticultural purposes:
(i) excavates to a depth greater than 10cm over an area 1m2 or
larger;
(ii) raises the soil level by more than 10cm above the natural soil level
over an area 4m2 or larger.
Examples of cultivation for horticultural
purposes
1 preparing garden beds for planting
2 planting trees and shrubs
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Division
3.2 Prohibited
activities
15 Damaging
protected trees
(1) A person commits an offence if—
(a) the person engages in conduct that damages a protected tree;
and
(b) the person is reckless about whether the conduct would damage the
protected tree.
Maximum penalty: 400 penalty units.
(2) A person commits an offence if the person engages in conduct reckless
about whether the conduct would damage a protected tree.
Maximum penalty: 200 penalty units.
(3) A person commits an offence if—
(a) the person engages in conduct that damages a protected tree;
and
(b) the person is negligent about whether the conduct would damage the
protected tree.
Maximum penalty: 100 penalty units.
(4) A person commits an offence if the person engages in conduct that
damages, or is likely to damage, a protected tree.
Maximum penalty: 50 penalty units.
(5) For subsections (1), (2) and (3), strict liability applies to the
circumstance that the tree is a protected tree.
(6) An offence against subsection (4) is a strict liability
offence.
16 Doing
prohibited groundwork
(1) A person commits an offence if—
(a) the person does prohibited groundwork in the protection zone for a
protected tree; and
(b) the person is reckless about whether the groundwork is prohibited
groundwork in the protection zone for a protected tree.
Maximum penalty: 200 penalty units.
(2) A person commits an offence if—
(a) the person does prohibited groundwork in the protection zone for a
protected tree; and
(b) the person is negligent about whether the groundwork is prohibited
groundwork in the protection zone for a protected tree.
Maximum penalty: 100 penalty units.
(3) A person commits an offence if the person does prohibited groundwork
in the protection zone for a protected tree.
Maximum penalty: 50 penalty units.
(4) For subsections (1) and (2), strict liability applies to the
circumstances that—
(a) the tree is a protected tree; and
(b) the groundwork is done in the protection zone for the tree.
(5) An offence against subsection (3) is a strict liability
offence.
(1) Section 15 and section 16 do not apply to—
(a) an activity approved under section 22 or section 26 that is done in
accordance with the conditions (if any) of the approval (whether or not done by
the person who applied for the approval); or
(b) the removal of a tree if the registration of the tree is cancelled
under division 7.3 for safety reasons; or
(c) anything done in accordance with—
(i) a tree management plan approved under section 32; or
(ii) a direction under the Plant Diseases Act 2002, section 13
(Direction for seizure, disinfection, destruction etc of plants etc);
or
(d) anything done in relation to a regulated tree under—
(i) the Utilities Act 2000, section 105 (Installation of network
facilities) or section 106 (Maintenance of network facilities); or
(ii) a network protection notice given under that Act, section 125
(Network protection notices).; or
(e) anything done honestly by a relevant person in the exercise or
purported exercise of a function under the Emergencies Act 2004 for the
purpose of protecting life or property, or controlling, extinguishing or
preventing the spread of fire.
(2) In this section:
relevant person means—
(a) the chief officer (fire brigade); or
(b) any other member of the fire brigade; or
(c) the chief officer (rural fire service); or
(d) any other member of the rural fire service; or
(e) any other person under the control of the chief officer (fire brigade)
or the chief officer (rural fire service); or
(f) a police officer.
Division
3.3 Approved
activities
(1) The Minister may, in writing, determine criteria (the approval
criteria) for approving an activity that would or may—
(a) damage a protected tree; or
(b) be prohibited groundwork in the protection zone for a protected
tree.
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
19 Application
for approval of tree damaging etc activity
A person may apply, in writing, to the conservator for approval for an
activity that would or may—
(a) damage a protected tree; or
(b) be prohibited groundwork in the protection zone for a protected
tree.
Note 1 A fee may be determined under s 98 for an
application.
Note 2 If a form is approved under s 99 for an application, the form
must be used.
20 Further
information for approval application
(1) The conservator may, by written notice given to the applicant, require
the applicant to give the conservator further stated information or a document
that the conservator reasonably needs to decide the application.
(2) If the applicant fails to comply with a requirement under
subsection (1), the conservator may refuse to consider the application
further.
21 Advisory
panel advice on approval application
The conservator may ask the advisory panel for advice on the
application.
22 Decision
on approval application
(1) The conservator must decide whether to approve the activity to which
the application relates.
(2) In making a decision on the application, the conservator must have
regard to—
(a) the approval criteria; and
(b) the advice (if any) of the advisory panel; and
(c) anything else the conservator considers relevant.
(3) An approval may be given subject to conditions stated in the
approval.
23 Notice
of decision on approval application
(1) The conservator must give written notice of the decision on the
application to—
(a) the applicant; and
(b) the lessee of, or land management agency for, the land where the tree
is located; and
(c) the lessee of, or land management agency for, land where the activity
is to be undertaken; and
(d) the lessee of land that—
(i) adjoins the land where the tree is located; and
(ii) is within 100m of the tree; and
(e) if the application relates to a tree that has heritage
significance—the heritage council.
(2) However, the conservator need not give more than 1 notice to a
particular person.
(3) The conservator may give written notice of the decision to anyone else
the conservator considers appropriate.
(1) Subject to section 95 (Application for reconsideration of certain
decisions), an approval takes effect on the date stated in the notice of
decision.
(2) The date stated in the notice must be at least 14 days after the day
the notice is given to the applicant.
(3) Unless sooner cancelled, the approval remains in force for the period
stated in the approval.
(4) The conservator may, in writing, extend the approval for a stated
period if satisfied that the activity still satisfies the approval
criteria.
(5) The approval may be extended under subsection (4) even if it has
already ended.
25 Cancellation
of approval
(1) The conservator may cancel an approval if satisfied that the activity
approved does not satisfy, or no longer satisfies, the approval criteria.
(2) The conservator must give written notice of the cancellation
to—
(a) the applicant; and
(b) the lessee of, or land management agency for, the land where the tree
is located; and
(c) the lessee of, or land management agency for, land where the activity
was approved to be undertaken; and
(d) the lessee of land that—
(i) adjoins the land where the tree is located; and
(ii) is within 100m of the tree.
(3) However, the conservator need not give more than 1 notice to a
particular person.
(4) For subsection (2) (a), it is sufficient if the conservator sends
the notice to the applicant at the address last given to the conservator by the
applicant.
(5) The conservator may give written notice of the cancellation to anyone
else the conservator considers appropriate.
(6) Subject to section 95 (Application for reconsideration of certain
decisions), the cancellation takes effect on the date stated in the notice of
cancellation.
(7) The date stated in the notice must be at least 14 days after the day
the notice is given to the applicant.
26 Approval
in urgent circumstances or for minor works
(1) A person may apply to the conservator under this section for an
approval for an activity that would or may—
(a) damage a protected tree; or
(b) be prohibited groundwork in the protection zone for a protected
tree.
(2) The application may be made orally or in writing.
(3) The conservator may approve the activity if satisfied
that—
(a) the circumstances require the application to be considered urgently;
and
(b) the activity is necessary to protect the health or safety of people or
animals, or public or private property.
(4) The conservator may also approve an activity that is, or may be, major
pruning or prohibited groundwork if the conservator is satisfied the activity
will have little or no adverse impact on the health or stability of the
tree.
(5) The approval may be given orally or in writing but the conservator
must make a written record of any oral approval as soon as practicable after
giving it.
(6) The approval may be given subject to conditions stated in the
approval.
(7) The conservator must give written notice of the decision on the
application to the applicant.
(8) Unless sooner cancelled, the approval has effect for the period stated
in the approval.
27 Compliance
with conditions of approval
(1) If an approval is given under section 22 or section 26 subject to
conditions, the person to whom the approval is given must—
(a) ensure that a notice of the conditions of approval is prominently
displayed near the tree; or
(b) take other reasonable steps to ensure that anyone who may do anything
to the tree or in the protection zone for the tree knows about the conditions of
the approval.
Maximum penalty: 50 penalty units.
(2) A person commits an offence if the person fails to comply with a
condition of an approval given under section 22 or section 26.
Maximum penalty: 50 penalty units.
(3) An offence against this section is a strict liability
offence.
Part
4 Tree management
plans
28 Guidelines
for tree management plans
(1) The conservator may, in writing, determine guidelines for tree
management plans.
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
29 Proposal
or application for approval of tree management plan
(1) The conservator may, on the conservator’s own initiative,
propose a tree management plan for a registered tree in a built-up urban
area.
(2) Anyone else may apply for approval of a tree management plan for any
tree in a built-up urban area.
Note 1 A fee may be determined under s 98 for an
application.
Note 2 If a form is approved under s 99 for an application, the form
must be used.
(3) An application under subsection (2) must be in writing and must be
given to the conservator.
30 Further
information for tree management plan application
(1) The conservator may, by written notice given to the applicant, require
the applicant to give the conservator further stated information or a document
that the conservator reasonably needs to decide the application.
(2) If the applicant fails to comply with a requirement under
subsection (1), the conservator may refuse to consider the application
further.
31 Advisory
panel advice on proposed tree management plan
The conservator may ask the advisory panel for advice on the proposal or
application under section 29.
32 Decision
on tree management plan
(1) The conservator must decide whether to approve the tree management
plan.
(2) In making the decision, the conservator must have regard
to—
(a) the guidelines approved under section 28; and
(b) the advice (if any) of the advisory panel; and
(c) anything else the conservator considers relevant.
(3) If the conservator approves a tree management plan for a registered
tree, the conservator must include details of the plan in the tree register.
33 Notice
of decision on tree management plan
(1) The conservator must give written notice of the decision on the tree
management plan to the applicant (if any).
(2) If the decision is to approve the tree management plan, the
conservator must also give written notice of the decision to—
(a) the lessee of the land where the tree is located; and
(b) the lessee of land that—
(i) adjoins the land where the tree is located; and
(ii) is within 100m of the tree; and
(c) if the plan is for a tree that the conservator considers may have
heritage significance—the heritage council.
(3) However, the conservator need not give more than 1 notice to a
particular person.
(4) The conservator may also give written notice of the decision to anyone
else the conservator considers appropriate.
34 Operation
of tree management plan
(1) Subject to section 95 (Application for reconsideration of certain
decisions), a tree management plan takes effect on the date stated in the notice
of decision.
(2) The date stated in the notice must be at least 14 days after the day
the notice is given to—
(a) the applicant; or
(b) for a tree management plan proposed on the conservator’s own
initiative—the people mentioned in section 33 (2).
Part
5 Tree management
precincts
35 Criteria
for tree management precincts
(1) The Minister may, in writing, determine criteria for declaring an area
of land in a built-up urban area to be a tree management precinct.
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
36 Tree
management precinct declaration
(1) The Minister may, in writing, declare a stated area of land in a
built-up urban area to be a tree management precinct.
(2) The Minister may declare an area of land in a built-up urban area to
be a tree management precinct only if satisfied that the area satisfies the
criteria determined under section 35.
(3) A declaration is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
37 Meaning
of registered tree for pt 6
In this part:
registered tree does not include a provisionally registered
tree.
(1) The conservator must keep a register of trees (the tree
register).
(2) The tree register must include—
(a) for each provisionally registered tree—everything required to be
entered in the register under section 45; and
(b) for each registered tree—
(i) everything required to be entered in the register under section
51 (2); and
(ii) the tree management plan (if any) for the tree; and
(c) the following information about any activity in relation to a
provisionally registered or registered tree for which an approval under division
3.3 is in effect:
(i) the activity approved;
(ii) any conditions to which the approval is subject;
(iii) the period of the approval; and
(d) any changes to the information in the register that are necessary to
keep the register up-to-date.
(3) The tree register may also include any other information the
conservator considers relevant.
39 Correction
of tree register
The conservator may correct a mistake or omission in the tree register
subject to the requirements (if any) of the regulations.
40 Inspection
of tree register
(1) A person may, without charge, inspect the tree register during
ordinary office hours at the office of the conservator.
(2) A person may make a copy of all or part of the tree
register.
Note A fee may be determined under s 98 for
s (2).
41 Restricted
information in tree register
(1) This section applies if anything required to be entered in the tree
register in relation to a tree is restricted information.
(2) The conservator must include a statement in the register about the
effect of subsections (3) and (4).
(3) The restricted information must not be disclosed or copied under
section 40 except in accordance with subsection (4).
(4) The restricted information may be made available for inspection or
copying only if the publication of the information is approved under section 64
(Approval to publish restricted information).
Part
7 Registration of
trees
Division
7.1 Criteria for registration
etc
42 Criteria
for registration and cancellation of registration
(1) The Minister may, in writing, determine—
(a) criteria (the registration criteria) for the
registration of a tree; and
(b) criteria (the cancellation criteria) for the
cancellation of the registration of a tree.
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
Division
7.2 Registration
process
43 Nomination
for registration
(1) Anyone (including the conservator) may nominate a tree in a built-up
urban area for registration.
Note 1 A fee may be determined under s 98 for a
nomination.
Note 2 If a form is approved under s 99 for a nomination, the form
must be used.
(2) A nomination must be in writing and must be given to the
conservator.
44 Decision
on provisional registration
(1) If the conservator receives a nomination for a tree, the conservator
must decide whether to provisionally register the tree.
(2) The conservator may provisionally register a tree only if the
conservator considers the tree may satisfy the registration criteria.
(3) The conservator may refuse to consider a nomination if satisfied the
nomination is frivolous or vexatious.
45 Provisional
registration
If the conservator decides to provisionally register a tree, the
conservator must provisionally register the tree by entering in the tree
register—
(a) enough information to enable the tree to be identified; and
(b) if practicable, the tree’s botanical name and any relevant
horticultural information; and
(c) a description of the protection zone for the tree; and
(d) an indication that the registration is provisional; and
(e) the period of the provisional registration.
46 Notice
of decision on provisional registration
(1) The conservator must give written notice of a decision under
section 44 to—
(a) the person who nominated the tree for registration; and
(b) the lessee of, or land management agency for, the land where the tree
is located; and
(c) the lessee of, or land management agency for, land
that—
(i) adjoins the land where the tree is located; and
(ii) is within 100m of the tree; and
(d) if the conservator considers the tree may have heritage
significance—the heritage council.
(2) However, the conservator need not give more than 1 notice to a
particular person.
(3) The conservator may give written notice of the decision to anyone else
the conservator considers appropriate.
(4) The conservator must also publish notice of the decision in a daily
newspaper.
(5) A notice under this section must include—
(a) enough information to enable the tree to be identified; and
(b) a statement to the effect that any comments on the proposed
registration of the tree may be given to the conservator on or before the
closing date stated in the notice.
(6) The closing date must be at least 21 days after the day the
notice is published in a daily newspaper.
(7) A notice under this section must not include restricted
information.
47 Consultation
on proposed registration
(1) After making a decision under section 44, the conservator must ask the
advisory panel for advice on the proposed registration of the tree.
(2) If the conservator considers the tree may have heritage significance,
the conservator must also ask the heritage council for advice on the proposed
registration.
48 Period
of provisional registration
(1) The provisional registration of a tree is for 1 year beginning on the
day it is provisionally registered.
(2) However, the provisional registration ends if, within the
year—
(a) the tree is registered; or
(b) the conservator decides not to register the tree, the appeal period
for the decision ends and—
(i) there is no appeal within the period; or
(ii) any appeal is finally decided and is unsuccessful.
(3) The conservator may provisionally register a tree more than
once.
49 Decision
on registration
(1) The conservator must decide whether to register the tree having regard
to—
(a) any advice on the proposed registration given to the conservator by
the advisory panel or the heritage council; and
(b) any comments received on the proposed registration on or before the
closing date stated in the notice under section 46.
Note A decision under this section is a reviewable decision (see s
97).
(2) The conservator may register the tree only if the conservator
considers the tree satisfies the registration criteria.
50 Notice
of decision on registration
(1) The conservator must give written notice of a decision under
section 49 to—
(a) the person who nominated the tree for registration; and
(b) the lessee of, or land management agency for, the land where the tree
is located; and
(c) the lessee of, or land management agency for, land
that—
(i) adjoins the land where the tree is located; and
(ii) is within 100m of the tree; and
(d) anyone who gave the conservator—
(i) written comments about the proposed registration; and
(ii) contact details for notification of the conservator’s decision;
and
(e) if the heritage council gave advice on the proposed
registration—the heritage council.
(2) However, the conservator need not give more than 1 notice to a
particular person.
(3) The conservator may give written notice of the decision to anyone else
the conservator considers appropriate.
(4) If the decision is to register the tree, the conservator must also
publish notice of the decision in a daily newspaper.
(5) A notice under this section must not include restricted
information.
(1) This section applies if—
(a) the conservator decides to register a tree; and
(b) the appeal period for the decision ends and—
(i) there is no appeal within the period; or
(ii) any appeal is finally decided and is unsuccessful.
(2) The conservator must register the tree by entering in the tree
register—
(a) a photograph or other image of the tree; and
(b) the tree’s location; and
(c) the tree’s botanical name and any relevant horticultural
information; and
(d) a description of the protection zone for the tree; and
(e) a statement about the tree’s significance.
Division
7.3 Cancellation of
registration
52 Proposal
for cancellation of registration
(1) Anyone (including the conservator) may propose that the registration
of a tree be cancelled.
Note 1 A fee may be determined under s 98 for a proposal.
Note 2 If a form is approved under s 99 for a proposal, the form
must be used.
(2) A proposal must be in writing and must be given to the
conservator.
(3) The conservator may refuse to consider a proposal if satisfied the
proposal is frivolous or vexatious.
53 Notice
of proposed cancellation of registration
(1) Before considering a proposal for the cancellation of the registration
of a tree, the conservator must give written notice of the proposed cancellation
to—
(a) the person who proposed the cancellation; and
(b) the lessee of, or land management agency for, the land where the tree
is located; and
(c) the lessee of, or land management agency for, land where the
protection zone for the tree is located; and
(d) if the tree register indicates that the tree has heritage
significance—the heritage council.
(2) However, the conservator need not give more than 1 notice to a
particular person.
(3) The conservator may give written notice of the proposed cancellation
to anyone else the conservator considers appropriate.
(4) The conservator must also publish notice of the proposed cancellation
in a daily newspaper.
(5) A notice under this section must include—
(a) an indication of whether the conservator considers that the proposed
cancellation may satisfy the cancellation criteria; and
(b) a statement to the effect that any comments about the proposed
cancellation may be given to the conservator by the closing date stated in the
notice.
(6) The closing date must be at least 21 days after the day the
notice is published in a daily newspaper.
(7) A notice under this section must not include restricted
information.
54 Consultation
on proposed cancellation of registration
(1) After giving a notice under section 53, the conservator must ask the
advisory panel for advice on the proposed cancellation.
(2) If the tree register indicates that the tree has heritage
significance, the conservator must also ask the heritage council for advice on
the proposed cancellation.
55 Decision
on cancellation of registration
(1) The conservator must decide whether to cancel the registration of the
tree having regard to—
(a) any advice on the proposed cancellation given to the conservator by
the advisory panel or the heritage council; and
(b) any comments received on the proposed cancellation on or before the
closing date stated in the notice under section 53.
Note A decision under this section is a reviewable decision (see s
97).
(2) The conservator may cancel the registration of the tree only if the
conservator considers the cancellation satisfies the cancellation
criteria.
56 Notice
of decision on cancellation of registration
(1) The conservator must give written notice of a decision under
section 55 to—
(a) the person who proposed the cancellation; and
(b) the lessee of, or land management agency for, the land where the tree
is located; and
(c) the lessee of, or land management agency for, land where the
protection zone for the tree is located; and
(d) anyone who gave the conservator—
(i) written comments about the proposed cancellation of registration;
and
(ii) contact details for notification of the conservator’s decision;
and
(e) if the heritage council gave advice on the proposed
cancellation—the heritage council.
(2) However, the conservator need not give more than 1 notice to a
particular person.
(3) The conservator may give written notice of the decision to anyone else
the conservator considers appropriate.
(4) If the decision is to cancel the registration, the conservator must
also publish notice of the decision in a daily newspaper.
(5) A notice under this section must not include restricted
information.
57 Cancellation
of registration
(1) This section applies if—
(a) the conservator decides to cancel the registration of a tree;
and
(b) the appeal period for the decision ends and—
(i) there is no appeal within the period; or
(ii) any appeal is finally decided and is unsuccessful.
(2) The conservator must cancel the registration of the tree by removing
the entry about the tree from the tree register.
58 Restriction
on building in protection zone
(1) If the registration of a tree is cancelled, a development approval
under the Land (Planning and Environment) Act 1991 for land that includes
the protection zone for the tree must not allow anything to be built in the
protection zone for—
(a) 5 years after the day the registration is cancelled; or
(b) any shorter period approved, in writing, by the conservator.
(2) The conservator must keep a record of protection zones that are
subject to restriction under subsection (1).
(3) The record must be available for anyone to inspect during ordinary
office hours at the office of the conservator.
(4) In this section:
protection zone, for a tree the registration of which has
been cancelled, means the area that was the protection zone for the tree
immediately before the registration was cancelled.
Part
8 Restricted
information
This part applies in relation to—
(a) a registered tree; or
(b) a tree that has been nominated for registration.
60 Restricted
non-Aboriginal information
(1) The conservator may, in writing, declare particular information about
the location or nature of the tree to be restricted information.
(2) The conservator may make the declaration only if satisfied, on
reasonable grounds, that public disclosure of the information would be likely to
have a substantial adverse effect on the values for which the tree is or may be
registered.
(3) The conservator must use the conservator’s best endeavours give
a copy of the declaration to—
(a) the person who nominated the tree for registration; and
(b) the lessee of, or land management agency for, the land where the tree
is located; and
(c) the lessee of, or land management agency for, land
that—
(i) adjoins the land where the tree is located; and
(ii) is within 100m of the tree; and
(d) if the tree has or may have heritage significance—the heritage
council.
61 Restricted
Aboriginal information
(1) If the tree is an Aboriginal heritage tree, information about the
location or nature of the tree is restricted information unless the conservator
declares in writing that it is not.
(2) Before making a declaration under subsection (1), the conservator
must consult, and consider the views of, each representative Aboriginal
organisation about the information.
(3) The conservator must use the conservator’s best endeavours to
give a copy of the declaration to—
(a) the person who nominated the tree for registration; and
(b) the lessee of, or land management agency for, the land where the tree
is located; and
(c) the lessee of, or land management agency for, land
that—
(i) adjoins the land where the tree is located; and
(ii) is within 100m of the tree; and
(d) the heritage council.
(4) In this section:
Aboriginal heritage tree—a tree is an Aboriginal
heritage tree if it is of particular significance to Aboriginal people
because of either or both of the following:
(a) Aboriginal tradition;
(b) the history, including contemporary history, of any Aboriginal people
of the area where the tree is located.
representative Aboriginal organisation means—
(a) an organisation declared under the Heritage Act 2004,
section 14 to be a representative Aboriginal organisation for that Act;
or
(b) an organisation prescribed under the regulations for this
definition.
62 Restricted
information not to be published without approval
(1) A person commits an offence if the person—
(a) publishes restricted information about a tree; and
(b) knows that the information is restricted information.
Maximum penalty: 50 penalty units.
(2) Subsection (1) does not apply if the publication
is—
(a) in accordance with an approval under section 63; or
(b) for the exercise of a function under this Act or another Territory
law; or
(c) is by an Aboriginal person to another Aboriginal person and is about
an Aboriginal heritage tree.
63 Approval
to publish restricted information
(1) The conservator may approve the publication of restricted information
about a tree if satisfied that the publication will not have a substantial
adverse effect on the values for which the tree is or may be
registered.
(2) An approval may be given only on application.
(3) An approval must be given in writing to the applicant.
(4) An application must be in writing and must—
(a) identify the restricted information proposed to be published;
and
(b) state the reason for the publication; and
(c) state the nature of the publication, including the person, people or
kind of people to whom it would be directed.
Note 1 A fee may be determined under s 98 for an
application.
Note 2 If a form is approved under s 99 for an application, the form
must be used.
64 Limited
access to restricted information
(1) This section applies if—
(a) land is offered for sale; and
(b) an interested person for the land applies to the conservator for
access to restricted information relevant to the conservation and use of the
land.
Note 1 A fee may be determined under s 98 for an
application.
Note 2 If a form is approved under s 99 for an application, the form
must be used.
(2) The conservator must give the applicant the restricted information
sought, together with a written explanation about the operation of this
part.
(3) In this section:
interested person—each of the following is an
interested person for land where a tree is located:
(a) someone considering buying an interest in the land;
(b) the person who nominated the tree for registration;
(c) the lessee of, or land management agency for, the land where the tree
is located;
(d) the lessee of, or land management agency for, land
that—
(i) adjoins the land where the tree is located; and
(ii) is within 100m of the tree;
(e) if the tree has or may have heritage significance—the heritage
council.
Part
9 Independent tree advisory
panel
65 Establishment
of advisory panel
The Independent Tree Advisory Panel (the advisory panel) is
established.
66 Members
of advisory panel
(1) The advisory panel consists of 3 or more members appointed by the
Minister.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person
or nominating the occupant of a position (see s 207).
Note 3 Certain Ministerial appointments require consultation with an
Assembly committee and are disallowable (see Legislation Act,
div 19.3.3).
(2) A member must be appointed to the advisory panel for a term of at
least 1 year and not longer than 2 years.
(3) The Minister must not appoint a person to the advisory panel unless
the person has extensive experience in 1 or more of the following
fields:
(a) arboriculture;
(b) forestry;
(c) horticulture;
(d) landscape architecture;
(e) natural and cultural heritage.
(4) The panel must include—
(a) 1 or more members with extensive experience in arboriculture or
forestry; and
(b) members who between them include people with extensive experience in 2
or more of the fields mentioned in subsection (3).
67 Functions
of advisory panel
The advisory panel has the following functions:
(a) to give any advice requested by the conservator, including advice on
the following:
(i) an application for approval of an activity under division 3.3;
(ii) an application for approval of a tree management plan;
(iii) the proposed registration of a tree;
(iv) the proposed cancellation of registration of a tree;
(v) a request for reconsideration of a decision; and
(b) to give other advice to the conservator on anything relevant to the
conservator’s functions in relation to tree protection.
68 Ending
appointment—advisory panel members
The Minister may, by written notice to a member of the advisory panel, end
the member’s appointment to the advisory panel—
(a) for misbehaviour or physical or mental incapacity; or
(b) for contravening section 69.
Note A person’s appointment also ends if the person resigns
(see Legislation Act, s 210).
69 Disclosure
of interests—advisory panel members
(1) This section applies if—
(a) a member of the advisory panel has a direct or indirect financial
interest or personal interest in an issue in relation to which the advisory
panel has been asked to advise the conservator; and
(b) the interest could conflict with the proper exercise of the advisory
panel’s functions in relation to the advice.
(2) As soon as practicable after the member or the advisory panel becomes
aware of the relevant facts, the member or advisory panel must disclose the
nature of the interest to the conservator.
(3) The member must not advise, or further advise, the conservator in
relation to the issue, unless the conservator directs otherwise.
(4) Within 14 days after the end of each financial year, the conservator
must give the Minister a statement of any disclosure of interest made under this
section, and any direction given by the conservator, during the financial
year.
70 Advisory
panel’s procedures etc
The regulations may prescribe procedures of the advisory panel, including
how decisions are made by the panel.
Examples of what regulations may
prescribe
1 the quorum at meetings of the advisory panel
2 who is to preside at meetings of the advisory panel
3 how questions are to be resolved at meetings of the advisory
panel
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
71 Delegation
by advisory panel
(1) The advisory panel may delegate any of its functions to a member of
the advisory panel subject to the requirements (if any) of the
regulations.
Note For the making of delegations and the exercise of delegated
functions, see Legislation Act, pt 19.4.
(2) However, the advisory panel may only delegate the following functions
to a member of the panel with extensive experience in arboriculture, forestry or
horticulture:
(a) giving advice to the conservator in relation to an approval of an
activity under division 3.3;
(b) giving advice to the conservator in relation to an approval of a tree
management plan.
Part
10 Tree protection
directions
72 Criteria
for tree protection directions
(1) The conservator may, in writing, determine criteria for the giving of
tree protection directions.
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and
presented to the Legislative Assembly, under the Legislation Act.
73 Conservator
may give tree protection directions
(1) The conservator may give the owner or occupier of land where a
protected tree is located, or anyone undertaking an activity that may affect a
protected tree, a written direction to do or not do something for the protection
of the tree.
(2) A direction may only be given in accordance with the criteria
determined under section 72.
(3) If the direction is to do a stated thing, the direction must state the
time (not longer than 14 days after the day the direction is given) within which
the direction must be complied with.
(4) A person commits an offence if the person intentionally contravenes a
direction.
Maximum penalty: 50 penalty units.
In this part:
connected—a thing is connected with an
offence if—
(a) the offence has been committed in relation to it; or
(b) it will provide evidence of the commission of the offence;
or
(c) it was used, is being used, or is intended to be used, to commit the
offence.
occupier, of premises, includes—
(a) a person believed, on reasonable grounds, to be an occupier of the
premises; and
(b) a person apparently in charge of the premises.
Note The dictionary defines premises as including
land.
offence includes an offence that there are reasonable grounds
for believing has been, is being, or will be, committed.
Division
11.2 Authorised
people
75 Appointment
of authorised people
The chief executive may appoint a person to be an authorised person for
this Act.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see
s 207).
(1) The chief executive must give each authorised person an identity card
that states the person’s name and appointment as an authorised person, and
shows—
(a) a recent photograph of the person; and
(b) the date of issue of the card; and
(c) the date of expiry of the card; and
(d) anything else prescribed under the regulations.
(2) A person commits an offence if—
(a) the person ceases to be an authorised person; and
(b) the person does not return the person’s identity card to the
chief executive as soon as practicable (but within 7 days) after the day the
person ceases to be an authorised person.
Maximum penalty: 1 penalty unit.
(3) An offence against this section is a strict liability
offence.
Division
11.3 Powers of authorised
people
77 Power
to enter premises
(1) For this Act, an authorised person may—
(a) at any reasonable time, enter premises that the public is entitled to
use or that are open to the public (whether on not on payment of money);
or
(b) at any reasonable time, enter premises to—
(i) inspect a tree, or the area near a tree, that is registered or
proposed to be registered; or
(ii) give a tree protection direction to the owner or occupier;
or
(c) at any time, enter premises with the occupier’s consent;
or
(d) at any time, enter premises if the authorised person believes, on
reasonable grounds, that the circumstances are so serious and urgent that
immediate entry to the premises without the authority of a search warrant is
necessary; or
(e) enter premises in accordance with a search warrant.
(2) However, subsections (1) (a) and (1) (b) do not authorise entry into a
part of premises that is being used only for residential purposes.
(3) An authorised person may, without the consent of the occupier of
premises, enter land around the premises to ask for consent to enter the
premises.
(4) To remove any doubt, an authorised person may enter premises under
subsection (1) without payment of an entry fee or other charge.
(5) For subsection (1) (d), the inspector may enter the premises
with any necessary assistance and force.
78 Production
of identity card
An authorised person may not remain at premises entered under this part if
the authorised person does not produce his or her identity card when asked by
the occupier.
(1) When seeking the consent of an occupier to enter premises under
section 77 (1) (c), an authorised person must—
(a) produce his or her identity card; and
(b) tell the occupier—
(i) the purpose of the entry; and
(ii) that anything found and seized under this part may be used in
evidence in court; and
(iii) that consent may be refused.
(2) If the occupier consents, the authorised person must ask the occupier
to sign a written acknowledgment (an acknowledgment of
consent)—
(a) that the occupier was told—
(i) the purpose of the entry; and
(ii) that anything found and seized under this part may be used in
evidence in court; and
(iii) that consent may be refused; and
(b) that the occupier consented to the entry; and
(c) stating the time and date when consent was given.
(3) If the occupier signs an acknowledgment of consent, the authorised
person must immediately give a copy to the occupier.
(4) A court must find that the occupier did not consent to entry to the
premises by the authorised person under this part if—
(a) the question whether the occupier consented to the entry arises in a
proceeding in the court; and
(b) an acknowledgment of consent for the entry is not produced in
evidence; and
(c) it is not proved that the occupier consented to the entry.
80 General
powers on entry to premises
(1) An authorised person who enters premises under this part may, for this
Act, do 1 or more of the following in relation to the premises or anything at
the premises:
(a) inspect or examine;
(b) take measurements or conduct tests;
(c) take samples;
(d) take photographs, films, or audio, video or other
recordings;
(e) require the occupier, or anyone at the premises, to give the
authorised person reasonable help to exercise a power under this part.
Note The Legislation Act, s 170 and s 171 deal with the application
of the privilege against selfincrimination and client legal privilege.
(2) A person must take all reasonable steps to comply with a requirement
made of the person under subsection (1) (f).
Maximum penalty: 50 penalty units.
(1) An authorised person who enters premises under this part with the
occupier’s consent may seize anything at the premises if—
(a) the authorised person is satisfied, on reasonable grounds, that the
thing is connected with an offence against this Act; and
(b) seizure of the thing is consistent with the purpose of the entry told
to the occupier when seeking the occupier’s consent.
(2) An authorised person who enters premises under a warrant under this
part may seize anything at the premises that the authorised person is authorised
to seize under the warrant.
(3) An authorised person who enters premises under this part (whether with
the consent of the occupier, under a warrant or otherwise) may seize anything at
the premises if satisfied, on reasonable grounds, that—
(a) the thing is connected with an offence against this Act; and
(b) the seizure is necessary to prevent the thing from
being—
(i) concealed, lost or destroyed; or
(ii) used to commit, continue or repeat the offence.
(4) Having seized a thing, an authorised person may—
(a) remove the thing from the premises where it was seized (the
place of seizure) to another place; or
(b) leave the thing at the place of seizure but restrict access to
it.
(5) A person commits an offence if—
(a) the person interferes with a seized thing, or anything containing a
seized thing, to which access has been restricted under subsection (4);
and
(b) the person does not have an authorised person’s approval to
interfere with the thing.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(6) An offence against subsection (5) is a strict liability
offence.
82 Power
to require name and address etc
(1) An authorised person may require a person to state the person’s
name and home address if the authorised person suspects, on reasonable grounds,
that the person is committing, is about to commit, or has just committed, an
offence against this Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
(2) If an authorised person makes a requirement of a person under
subsection (1), the authorised person must—
(a) tell the person the reasons for the requirement; and
(b) as soon as practicable, record the reasons.
(3) A person commits an offence if the person contravenes a requirement
under subsection (1).
Maximum penalty: 10 penalty units.
(4) However, a person is not required to comply with a requirement under
subsection (1) if, when asked by the person, the authorised person does not
produce his or her identity card for inspection by the person.
(5) An offence against subsection (3) is a strict liability
offence.
(6) In this section:
home address, of a person, means the address of the place
where the person usually lives.
Division
11.4 Search
warrants
(1) An authorised person may apply to a magistrate for a warrant to enter
premises.
(2) The application must be sworn and state the grounds on which the
warrant is sought.
(3) The magistrate may refuse to consider the application until the
authorised person gives the magistrate all the information the magistrate
requires about the application in the way the magistrate requires.
(4) The magistrate may issue a warrant only if satisfied there are
reasonable grounds for suspecting—
(a) there is a particular thing or activity connected with an offence
against this Act; and
(b) the thing or activity—
(i) is, or is being engaged in, at the premises; or
(ii) may be, or may be engaged in, at the premises within the next 14
days.
(5) The warrant must state—
(a) that an authorised person may, with any necessary assistance and
force, enter the premises and exercise the authorised person’s powers
under this part; and
(b) the offence for which the warrant is issued; and
(c) the things that may be seized under the warrant; and
(d) the hours when the premises may be entered; and
(e) the date, within 14 days after the day of the warrant’s issue,
when the warrant ends.
84 Warrants—application
made other than in person
(1) An authorised person may apply for a warrant by phone, fax, radio or
other form of communication if the authorised person considers it necessary
because of—
(a) urgent circumstances; or
(b) other special circumstances.
(2) Before applying for the warrant, the authorised person must prepare an
application stating the grounds on which the warrant is sought.
(3) The authorised person may apply for the warrant before the application
is sworn.
(4) After issuing the warrant, the magistrate must immediately fax a copy
to the authorised person if it is practicable to do so.
(5) If it is not practicable to fax a copy to the authorised
person—
(a) the magistrate must—
(i) tell the authorised person what the terms of the warrant are;
and
(ii) tell the authorised person the date and time the warrant was issued;
and
(b) the authorised person must complete a form of warrant (the
warrant form) and write on it—
(i) the magistrate’s name; and
(ii) the date and time the magistrate issued the warrant; and
(iii) the warrant’s terms.
(6) The faxed copy of the warrant, or the warrant form properly completed
by the authorised person, authorises the entry and the exercise of the
authorised person’s powers under this part.
(7) The authorised person must, at the first reasonable opportunity, send
to the magistrate—
(a) the sworn application; and
(b) if the authorised person completed a warrant form—the completed
warrant form.
(8) On receiving the documents, the magistrate must attach them to the
warrant.
(9) A court must find that a power exercised by an authorised person was
not authorised by a warrant under this section if—
(a) the question arises in a proceeding before the court whether the
exercise of power was authorised by a warrant; and
(b) the warrant is not produced in evidence; and
(c) it is not proved that the exercise of power was authorised by a
warrant under this section.
85 Search
warrants—announcement before entry
(1) An authorised person must, before anyone enters premises under a
search warrant—
(a) announce that the authorised person is authorised to enter the
premises; and
(b) give anyone at the premises an opportunity to allow entry to the
premises; and
(c) if the occupier of the premises, or someone else who apparently
represents the occupier, is present at the premises—identify himself or
herself to the person.
(2) The authorised person is not required to comply with
subsection (1) if the authorised person believes, on reasonable grounds,
that immediate entry to the premises is required to ensure—
(a) the safety of anyone (including the authorised person or any person
assisting); or
(b) that the effective execution of the warrant is not
frustrated.
86 Details
of search warrant to be given to occupier etc
If the occupier of the premises, or someone else who apparently represents
the occupier, is present at the premises while a search warrant is being
executed, the authorised person or a person assisting must make available to the
person—
(a) a copy of the warrant; and
(b) a document setting out the rights and obligations of the
person.
87 Occupier
entitled to be present during search etc
(1) If the occupier of premises, or someone else who apparently represents
the occupier, is present at the premises while a search warrant is being
executed, the person is entitled to observe the search being
conducted.
(2) However, the person is not entitled to observe the search
if—
(a) to do so would impede the search; or
(b) the person is under arrest, and allowing the person to observe the
search being conducted would interfere with the objectives of the
search.
(3) This section does not prevent 2 or more areas of the premises being
searched at the same time.
Division
11.5 Return and forfeiture of things
seized
88 Receipt
for things seized
(1) As soon as practicable after a thing is seized by an authorised person
under this part, the authorised person must give a receipt for it to the person
from whom it was seized.
(2) If, for any reason, it is not practicable to comply with subsection
(1), the authorised person must leave the receipt, secured conspicuously at the
place of seizure under section 81 (Power to seize things).
(3) A receipt under this section must include the following:
(a) a description of the thing seized;
(b) an explanation of why the thing was seized;
(c) the authorised person’s name, and how to contact the authorised
person;
(d) if the thing is moved from the premises where it is seized—where
the thing is to be taken.
89 Moving
things to another place for examination or processing under search
warrant
(1) A thing found at premises entered under a search warrant may be moved
to another place for examination or processing to decide whether it may be
seized under the warrant if—
(a) both of the following apply:
(i) there are reasonable grounds for believing that the thing is or
contains something to which the warrant relates;
(ii) it is significantly more practicable to do so having regard to the
timeliness and cost of examining or processing the thing at another place and
the availability of expert assistance; or
(b) the occupier of the premises agrees in writing.
(2) The thing may be moved to another place for examination or processing
for no longer than 72 hours.
(3) An authorised person may apply to a magistrate for an extension of
time if the authorised person believes, on reasonable grounds, that the thing
cannot be examined or processed within 72 hours.
(4) The authorised person must give notice of the application to the
occupier of the premises, and the occupier is entitled to be heard on the
application.
(5) If a thing is moved to another place under this section, the
authorised person must, if practicable—
(a) tell the occupier of the premises the address of the place where, and
time when, the examination or processing will be carried out; and
(b) allow the occupier or the occupier’s representative to be
present during the examination or processing.
(6) The provisions of this part relating to the issue of search warrants
apply, with any necessary changes, to the giving of an extension under this
section.
90 Access
to things seized
A person who would, apart from the seizure, be entitled to inspect a thing
seized under this part may—
(a) inspect it; and
(b) if it is a document—take extracts from it or make copies of
it.
91 Return
of things seized
(1) A thing seized under this part must be returned to its owner, or
reasonable compensation must be paid by the Territory to the owner for the loss
of the thing if—
(a) an infringement notice for an offence relating to the thing is not
served on the owner within 90 days after the day of the seizure
and—
(i) a prosecution for an offence relating to the thing is not begun within
the 90-day period; or
(ii) a prosecution for an offence relating to the thing is begun within
the 90-day period but the court does not find the offence proved; or
(b) an infringement notice for an offence relating to the thing is served
on the owner within 90 days after the day of the seizure, the infringement
notice is withdrawn and—
(i) a prosecution for an offence relating to the thing is not begun within
the 90-day period; or
(ii) a prosecution for an offence relating to the thing is so begun but
the court does not find the offence proved; or
(c) an infringement notice for an offence relating to the thing is served
on the owner within 1 year after the day of the seizure, liability for the
offence is disputed in accordance with the Magistrates Court Act 1930,
section 132 (Disputing liability for infringement notice offence)
and—
(i) an information is not laid in the Magistrates Court against the person
for the offence within 60 days after the day notice is given under section 132
that liability is disputed; or
(ii) the Magistrates Court does not find the offence proved.
(2) If anything seized under this part is not required to be returned or
reasonable compensation is not required to be paid under subsection (1),
the thing—
(a) is forfeited to the Territory; and
(b) may be sold, destroyed or otherwise disposed of as the chief executive
directs.
Division
11.6 Miscellaneous
92 Damage
etc to be minimised
(1) In the exercise, or purported exercise, of a function under this part,
an authorised person must take all reasonable steps to ensure that the
authorised person, and any person assisting the authorised person, causes as
little inconvenience, detriment and damage as practicable.
(2) If an authorised person, or a person assisting an authorised person,
damages anything in the exercise or purported exercise of a function under this
part, the authorised person must give written notice of the particulars of the
damage to the person the authorised person believes, on reasonable grounds, is
the owner of the thing.
(3) If the damage happens at premises entered under this part in the
absence of the occupier, the notice may be given by leaving it secured in a
conspicuous place at the premises.
93 Compensation
for exercise of enforcement powers
(1) A person may claim compensation from the Territory if the person
suffers loss or expense because of the exercise, or purported exercise, of a
function under this part by an authorised person or a person assisting an
authorised person.
(2) Compensation may be claimed and ordered in a proceeding
for—
(a) compensation brought in a court of competent jurisdiction;
or
(b) an offence against this Act brought against the person making the
claim for compensation.
(3) A court may order the payment of reasonable compensation for the loss
or expense only if it is satisfied it is just to make the order in the
circumstances of the particular case.
(4) The regulations may prescribe matters that may, must or must not be
taken into account by the court in considering whether it is just to make the
order.
Part
12 Review of
decisions
94 Notice
of decisions that can be reconsidered or reviewed
(1) If the conservator makes a decision that can be reconsidered or
reviewed under this part, the conservator must give written notice of the
decision to each person entitled to apply for reconsideration or review of the
decision.
(2) The notice must comply with the requirements of the code of practice
in force under the Administrative Appeals Tribunal Act 1989, section
25B (1).
(3) In particular, the notice must tell the person—
(a) whether the person has the right to apply for reconsideration of the
decision or the right to apply for review of the decision by the administrative
appeals tribunal, and how the application must be made; and
(b) if the person has the right to apply for reconsideration of the
decision—that the person has the right to apply to the administrative
appeals tribunal for review of the decision on the reconsideration;
and
(c) about the options available under other Territory laws to have the
decision reviewed by a court or the ombudsman.
95 Application
for reconsideration of certain decisions
(1) Application may be made to the conservator for reconsideration of any
of the following decisions of the conservator:
(a) to approve, or refuse to approve, an activity under section
22;
(b) to cancel the approval of an activity under section 25;
(c) to approve, or refuse to approve, a tree management plan under
section 32.
(2) The application may be made by anyone to whom the conservator gave
notice of the decision to be reconsidered.
(3) The application must be made within 14 days after the day the notice
of decision was given to the person.
(4) The application must be in writing and must set out the grounds on
which reconsideration of the decision is sought.
(5) If the application is made in accordance with this section, the making
of the application automatically stays the operation of the decision until the
application is finally dealt with.
96 Reconsideration
of decisions
(1) As soon as practicable after receiving an application for
reconsideration of a decision (the first decision), the
conservator must ask the advisory panel for advice on the application.
(2) Within a reasonable time after receiving the advisory panel’s
advice, the conservator must—
(a) reconsider the decision having regard to the advisory panel’s
advice; and
(b) confirm, vary or revoke the decision.
(3) The conservator must give written notice of the decision on the
reconsideration to everyone to whom the conservator gave notice of the first
decision.
97 Review
of decisions by AAT
(1) Application may be made to the administrative appeals tribunal for
review of the following decisions (the reviewable decision) of the
conservator:
(a) to approve, or refuse to approve, the registration of a tree under
section 49;
(b) to cancel, or refuse to cancel, the registration of a tree under
section 52;
(c) to approve, or refuse to approve, the publication of restricted
information under section 64;
(d) to give a direction under section 73;
(e) to confirm, vary or revoke a decision reconsidered under section
96.
(2) The application may be made by anyone to whom the conservator gave
notice of the reviewable decision.
(3) The application must be made with 21 days after the day the person was
given notice of the reviewable decision.
(1) The Minister may, in writing, determine fees for this Act.
Note The Legislation Act contains provisions about the making of
determinations and regulations relating to fees (see pt 6.3)
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
(1) The Minister may, in writing, approve forms for this Act.
(2) If the Minister approves a form for a particular purpose, the approved
form must be used for that purpose.
Note For other provisions about forms, see Legislation Act, s
255.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
100 Delegation
of conservator’s functions
(1) The conservator may delegate the conservator’s functions under
this Act to—
(a) a public employee; or
(b) an authorised person; or
(c) a person prescribed under the regulations.
Note For the making of delegations and the exercise of delegated
functions, see Legislation Act, pt 19.4.
(2) However, the conservator must not delegate the function
of—
(a) deciding under section 49 whether to register a tree; or
(b) deciding under section 55 whether to cancel the registration of a
tree; or
(c) reconsidering a decision under section 96.
101 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(2) The regulations may prescribe offences for contraventions of the
regulations and prescribe maximum penalties of not more than 10 penalty
units for offences against the regulations.
102 Definitions
for pt 14
In this part:
commencement day means the day this Act commences.
old Act means the Tree Protection (Interim Scheme) Act
2001.
103 Repeal
of Tree Protection (Interim Scheme) Act
The Tree Protection (Interim Scheme) Act 2001 A2001-20 is
repealed.
(1) A tree that is included in the heritage places register as an
individual tree immediately before the commencement day is taken to be
registered under this Act.
(2) As soon as practicable, the conservator must enter in the tree
register the details mentioned in section 51 (2) about the tree.
(3) In this section:
heritage places register means the register of heritage
places incorporated in the Territory plan.
105 Interim
tree management precincts
Each district under the Districts Act 2002 is taken to be a tree
management precinct on the commencement day.
(1) This section applies to an approval in force under the old Act,
section 15 immediately before the commencement day.
(2) The approval—
(a) continues in force as if it had been given under this Act, section 22;
and
(b) may be extended or cancelled by the conservator under this
Act.
107 Transitional
regulations
(1) The regulations may prescribe savings or transitional matters
necessary or convenient to be prescribed because of the enactment of this
Act.
(2) Without limiting the scope of subsection (1), the regulations may
prescribe matters necessary or convenient to be prescribed for carrying out or
giving effect to the provisions of this Act.
(3) Regulations made for this section must not be taken to be inconsistent
with this Act as far as they can operate concurrently with this Act.
(4) This section is additional to, and does not limit, section
108.
108 Modification
of pt 14’s operation
The regulations may modify this part to make provision in relation to any
matter that, in the Executive’s opinion, is not, or is not adequately,
dealt with in this part.
109 Legislation
amended—sch 1
This Act amends the legislation mentioned in schedule 1.
This part expires 2 years after the day it commences.
Schedule
1 Consequential
amendments
(see s 109)
Part
1.1 Administrative Appeals Tribunal
Act 1989
omit
• Tree Protection (Interim Scheme) Act 2001
substitute
• Tree Protection Act 2004
omit
• Tree Protection (Interim Scheme) Act 2001
substitute
• Tree Protection Act 2004
Part
1.2 Land (Planning and Environment)
Act 1991
[1.3] Section
229 (4) (b)
omit
a significant tree under the Tree Protection (Interim Scheme)
Act 2001
substitute
a protected tree under the Tree Protection Act 2004
[1.4] Section
254 (3) (d)
substitute
(d) if the order sought relates to the pruning of a tree that is a
protected tree under the Tree Protection Act 2004—the conservator;
and
Note For restrictions on pruning etc a protected tree, see the
Tree Protection Act 2004.
[1.5] Section
255 (2) (d)
substitute
(d) if the order sought relates to the pruning of a tree that is a
protected tree under the Tree Protection Act 2004—the conservator;
and
Note For restrictions on pruning etc a protected tree, see the
Tree Protection Act 2004.
[1.6] Section
257 (3) (k), note
substitute
Note For restrictions on pruning etc a protected tree, see the
Tree Protection Act 2004.
substitute
(f) if the order sought relates to the pruning of a tree that is a
protected tree under the Tree Protection Act 2004—the conservator;
and
Note For restrictions on pruning etc a protected tree, see the
Tree Protection Act 2004.
Part
1.3 Roads and Public Places
Act 1937
insert
(5) A roads and public places officer must not give a notice under this
section in relation to a protected tree under the Tree Protection
Act 2004 without the written consent of the conservator.
Part
1.4 Utilities Act
2000
[1.9] New
section 105 (5)
insert
(5) This section has effect in relation to a registered tree under the
Tree Protection Act 2004 subject to that Act, part 3 (Protection of
trees).
Note Under the Tree Protection Act 2004, pt 3 it is an
offence to damage a registered tree unless the damage is allowed under that
Act.
[1.10] New
section 106 (3)
insert
(3) This section has effect in relation to a registered tree under the
Tree Protection Act 2004 subject to that Act, part 3 (Protection of
trees).
Note Under the Tree Protection Act 2004, pt 3 it is an
offence to damage a registered tree unless the damage is allowed under that
Act.
[1.11] New
section 125 (8A)
insert
(8A) This section has effect in relation to a registered tree under the
Tree Protection Act 2004 subject to that Act, part 3 (Protection of
trees).
Note Under the Tree Protection Act 2004, pt 3 it is an
offence to damage a registered tree unless the damage is allowed under that
Act.
renumber subsections when Act next republished under Legislation
Act
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 In particular, the Legislation Act, dict, pt 1, defines the
following terms:
• appoint
• conservator of flora and fauna
• contravene
• exercise
• function
• heritage council
• public employee.
advisory panel—see section 65 (Establishment of
advisory panel).
approval criteria—see section 18.
AS 4373 means the Australian Standard entitled ‘AS
4373-1996 Pruning of amenity trees’, as in force from time to
time.
authorised person means a person appointed as an authorised
person under section 75.
built-up urban area—see section 7.
cancellation criteria—see section
42 (1).
connected, for part 10 (Enforcement)—see
section 74.
conservator means the conservator of flora and
fauna.
damage, to a protected tree, for part 3 (Protection of
trees)—see section 12.
engage in conduct means—
(a) do an act; or
(b) omit to do an act.
heritage significance—see the Heritage Act 2004,
section 10.
land management agency, for land where a tree is located,
means the entity responsible for managing the use of the land under a Territory
or Commonwealth law.
lopping—see section 12.
major pruning—see section 13.
occupier, for part 10 (Enforcement)—see section
74.
offence, for part 10 (Enforcement)—see section
74.
pollarding—see section 12.
premises includes land.
prohibited groundwork, for part 3 (Protection of
trees)—see section 14.
protected tree—see section 8.
protection zone, for a protected tree—see section
11.
provisionally register, a tree, means provisionally register
the tree under section 45.
public land—see the Land (Planning and Environment)
Act 1991, dictionary.
register, a tree, means register the tree under section 51,
registered tree—
(a) for part 6 (Tree register)—see section 37; and
(b) for the Act—see section 9.
registration criteria—see section 42.
regulated tree—see section 10.
restricted information means information restricted under
section 60 (Restricted non-Aboriginal information) or section 61
(Restricted Aboriginal information).
tree includes a palm tree.
tree management plan means a tree management plan approved
under section 32.
tree management precinct—see section
10 (1).
tree protection direction—see section 73.
tree register—see section 37.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2004.
2 Notification
Notified under the Legislation Act on 2004.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2004
[Index]
[Search]
[Download]
[Related Items]
[Help]