The NSW government is undertaking consultation on proposed changes to the penalties for illegal tree removal. Currently the penalties are so weak that many people appear to regard them as a small price to pay for gaining extra open land (and improved land value) to enable a larger house development or improved views or simply to remove the inconvenience of a falling leaves on the driveway.
Another major problem is that it is often difficult to get sufficient evidence to identify and/or prosecute the person responsible for the tree removal or damage. It could be a previous owner, the certifier that is facilitating complying development, a passing tree lopper who suggests to a new resident who is unfamiliar with the clearing controls that a prominent tree could be removed or a tree lopper that operates with no identification on their truck.
In brief the proposals are:
- to maintain the standard fine for individuals of $3,000 but apply an increased fine for significant trees or repeat offences of up to $6,000
- for a corporation the fines would range from $9,000 to $18,000
- the fines would apply on a per tree basis instead of per offence
- increased penalties for damage to trees in public reserves and sensitive land such as foreshores
There are other improvements being considered that are welcome such as:
- Ensuring existing restrictions on the building footprint under complying development where illegal clearing has occurred can be enforced, including when the illegal clearing was done by the previous owner
- Improve compliance and enforcement outcomes by making the policy clearer, lowering the burden of proof (to balance of probabilities) and giving councils the power to issue orders relating to vegetation clearing.
- Close potential loopholes associated with the removal of dead, dying and dangerous vegetation. Too often, soon after a property is sold, some trees die ‘mysteriously’ but there is insufficient evidence for the owner to be prosecuted.
- Requiring tree clearing permits to include a condition to replace cleared vegetation but this also would require councils to have the resources to monitor the health of replacement trees.
STEP argued in our submission that the maximum penalties should be higher. We also support higher penalties for corporations as they have greater opportunity to profit from the illegal action. Sole trader arborists should be classified as corporations for the purpose of setting the penalty level as they are in the business of tree clearing.
Definition of a dangerous tree
One current cause of concern is the circumstances where a tree is deemed to be dangerous and can be removed without a permit. Too often councils are permitting removal of trees after loss of a limb, perhaps after stormy weather. This applies to both public (street and park trees) and private land. Currently healthy looking mature trees with high ecological value are being chopped down.
The legislation needs to ensure that arborists certify that the risk of another significant branch fall is genuinely an imminent risk not an event that is possible in the long-term future. In addition the decision should consider whether the branch fall will cause damage to valuable property.
One frequent cause for concern is the removal by councils of street trees that appear to be healthy but it is argued that they are dangerous. There is a need to publicise the justification for removal to demonstrate that there is a serious and imminent risk.
There are yellow crosses on this tree in Normurra Ave, North Turramurra. Is it about to be removed?
Education about the value of trees and clearing laws
The development industry needs to cooperate with the intentions of the tree clearing and preservation legislation in order to reverse the trend of continuing loss of tree canopy. Complying development is a major source of loss of trees on private land. It appears impossible to reverse this situation. It is proving very difficult to overcome the mindset that it is desirable to create a neat and tidy garden surrounded by hedges with a house that occupies the maximum allowable area of the block of land. This landscaping (they are not gardens) provides no biodiversity benefits or habitat for birds or bees.
There is a need for requirements for the real estate industry and councils to work together to provide explanatory guides for property buyers and developers, outlining permit requirements, penalties for non-compliance, and the importance of early engagement with council vegetation controls.