Contributed by Environmental Defenders Office and current to June 2021.

Which trees are protected?

Significant trees in the ACT urban environment are identified and protected through the Tree Protection Act 2005 (ACT). The Tree Protection Act only applies to trees on land declared to be a ‘built-up urban area’ by the Minister (section 7 of the Tree Protection Act 2005).

Protected trees are 'registered trees' or 'regulated trees' (section 8 of the Tree Protection Act 2005).
1. Registered trees are trees registered on the ACT Tree Register (section 9 of the Tree Protection Act 2005). Trees can be registered if they meet the criteria for registration. The registration criteria are set out in the Tree Protection (Criteria for Registration and Cancellation of Registration) Determination 2018, which is determined by the Minister under section 45. This determination provides that a tree meets the registration criteria if the tree is located on built-up urban area and it can be demonstrated that it significantly contributes to one or more of the following values:
  • natural or cultural heritage value;
  • landscape and aesthetic value; and/or
  • scientific value.
2. Regulated trees are living trees of a certain significant size on leased land in a tree management precinct (other than registered trees or palm trees) (section 10 of the Tree Protection Act 2005). They must either:
  • be over 12m tall; or
  • have a trunk circumference of over 1.5m, 1m from the ground; or
  • have two or more trunks and the total circumference of all trunks, 1m above ground level, is over 1.5m; or
  • have a canopy of over 12m wide.
Pest plants under the Pest Plants and Animals Act 2005 cannot be regulated trees (section 10(2) of the Tree Protection Act 2005).

How can a tree be registered?

There are two steps to this:
  1. provisional registration; and then
  2. registration on the ACT Tree Register.
Anyone can nominate a tree in the built-up urban environment for inclusion on the ACT Tree Register using the online nomination form available on Access Canberra’s website (section 46 of the Tree Protection Act 2005). After receiving the registration form, the Conservator of Flora and Fauna (the Conservator) has six months to decide whether to provisionally register the tree (section 47(1) of the Tree Protection Act 2005).

The Conservator must place a notice of this decision on an ACT website or in a daily ACT newspaper (section 49(4) of the Tree Protection Act 2005) identifying the tree and calling for comments no less than 21 days after the publication of the notice. The Conservator must also seek the input of:
  • If the tree is an Aboriginal heritage tree, the Heritage Council must consult with each representative Aboriginal organisation (declared by the Minister under section 14 of the Heritage Act 2004 (ACT)) before giving the Conservator advice on the proposed registration of the tree (section 50(3) of the Tree Protection Act 2005).
Section 49 of the Tree Protection Act 2005 provides that the Conservator must give written notice of the decision to provisionally register the tree to:
  • the person who nominated the tree;
  • the Heritage Council, where the Conservator considers the tree to have heritage significance;
  • the lessee of, or land management agency (the land manager) for, the land that includes all or part of the protection zone for the tree; and
  • anyone else the Conservator considers appropriate.
Provisional registration lasts for one year, however provisional registration ceases if, within that year, the tree is registered or the Conservator decides not to permanently register the tree (section 51 of the Tree Protection Act 2005).

The Conservator must make a decision on the registration of the tree within one year after the day the tree was provisionally registered (section 52 of the Tree Protection Act 2005). In doing so, the Conservator must consider the advice of the Tree Advisory Panel, the Heritage Council, and any comments received on the proposed registration received in response to a public notice issued undersection 49 (section 52 of the Tree Protection Act 2005). To register a tree the Conservator must believe that the tree meets the criteria for registration (set out in the Tree Protection (Criteria for Registration and Cancellation of Registration) Determination 2018)(see above table for summary). The Conservator must provide written notification of the registration decision to affected parties and stakeholders (section 53 of the Tree Protection Act 2005).

Cancelling a tree registration

Anyone can make a proposal to cancel a registration to the Conservator (section 55(1) of the Tree Protection Act 2005). The Conservator:
  • may refuse to consider applications deemed frivolous or vexatious (section 55(3));
  • must give notice of the proposal to cancel (section 56); and
  • must seek the advice of the Tree Advisory Panel, and the Heritage Council as relevant (section 57).
The Conservator can only cancel a tree's registration if relevant criteria (set out in the Tree Protection (Criteria for Registration and Cancellation of Registration) Determination 2018) are met. These include, for example, the tree:
  • no longer meets the criteria for registration (section 4(1)(a));
  • presents an unacceptable safety risk (section 4(1)(b)); or
  • is causing substantial damage to a substantial building, structure or service which cannot be fixed without ongoing and extensive remediation (section 4(1)(c)).

Illegal damage to protected trees

It is an offence to damage a protected tree without approval, as well as to undertake prohibited ground work in the protection zone of a protected tree (sections 15 to 18 of the Tree Protection Act 2005). Unless otherwise defined in a tree management plan, the protection zone is measured in relation to the canopy of the tree and the four metre wide area surrounding the trunk (section 11 of the Tree Protection Act 2005).

Legal damage to protected trees and approval for damage/groundworks

Damage to a protected tree is permitted in certain circumstances (section 19 of the Tree Protection Act 2005).

Minor pruning

Minor pruning of a protected tree is permitted without approval.
  1. For registered trees, minor pruning is limited to removing deadwood, removing limbs with a diameter of 50mm or less, or the first pruning of the tree in the calendar year, which affects less than 10 per cent of the canopy and does not change the overall shape of the canopy (section 13(2)(a) of the Tree Protection Act 2005)
  2. For protected trees, minor pruningis pruning performed in accordance with the Australian Standard on Pruning of amenity trees (AS 4373) that does not affect the general appearance of the tree or if it is a fruit tree, if it is done in accordance with the Standard and is done for fruit production (section 13(2)(b) of the Tree Protection Act 2005).
However, major pruning, lopping and pollarding requires approval (section 12 and section 13 of the Tree Protection Act 2005) (see below).

Activities that may damage a protected tree or may be prohibited groundwork

In general, activities that may damage a protected tree or may be prohibited groundwork require the approval of the Conservator under section 25 of the Tree Protection Act 2005. The approval criteria for such activities are set out in the Tree Protection (Approval Criteria) Determination 2006 (No 2), which is determined by the Minister under section 21 of the Tree Protection Act 2005.

For example, the Conservator may give an approval to damage a regulated tree under section 25 of the Tree Protection Act 2005 if the tree meets the following approval criteria (section 1(1) of the Tree Protection (Approval Criteria) Determination 2006 (No 2));
  • it is in decline and its life expectancy is short;
  • it represents an unacceptable risk to public or private safety;
  • it is causing or threatening to cause substantial damage to a substantial building, structure or service;
  • it is an inappropriate tree for its location because of its potential size or growth habit (excluding remnant eucalypts);
  • it is substantially affecting solar access to the lessee's or a neighbour's lease between 9am and 3pm during winter and pruning would not fix the problem (excluding remnant eucalypts);
  • it is causing an allergic reaction to someone who lives on the property and the claim is supported by a medical specialist's certificate; and
  • it is part of a close planting and its removal would enable the other trees to develop fully.
In relation to major pruning, section 3 of the Tree Protection (Approval Criteria) Determination 2006 (No 2) provides that approval for major pruning of a registered tree may only be given if:
  • the work is required:
    • to maintain the health and safety of the tree; or
    • to maintain clearance from services; or
    • as a remedial treatment;
  • the work is necessary and will not:
    • substantially alter the tree's shape or form; or
    • cause the tree to become unsafe; or
    • result in the decline or death of the tree, or necessitate its removal or destruction.
Section 1(5) of the Tree Protection (Approval Criteria) Determination 2006 (No 2) provides that major pruning of regulated trees may be approved when:
  • the work is required:
    • as a remedial treatment; or
    • in the general interests of the health of the tree; or
    • to reduce an unacceptable risk to public or private safety; or
    • to reduce the risk of damage or prevent further damage to a substantial building, structure or service;
  • the tree is substantially affecting solar access to the lessees lease, or neighbouring lease, during winter between the hours of 9am to 3pm and minor pruning is not sufficient to remedy this (excluding remnant eucalypts).
A decision under section 25 must be made within 30 days of receiving an application. Urgent approvals to undertake prohibited activities may be granted where the activity is urgently required to protect the health or safety of people or animals, or public or private property (section 29(3)(b) of the Tree Protection Act 2005).

What if a protected tree is being damaged illegally?

The Conservator can issue directions (in writing) to the owner or occupier of land where a protected tree is located, or anyone undertaking an activity that may affect a protected tree, to do or not do something for the protection of the tree (section 76 of the Tree Protection Act 2005). A direction must be given in accordance with the Tree Protection (Criteria for Tree Protection Directions) Determination 2006 (No 1). Examples of directions under section 76 may include a direction to stop the damaging work, erect a fence around the tree, drain the area around the tree that is flooded, or prune the tree to correct any damage.

What if a protected tree will be affected by a proposed development?

The planning and land authority must refer certain development applications to the Conservator (section 148 of the Planning and Development Act 2007 (ACT) and regulation 26 of the Planning and Development Regulation 2008 (ACT)). For example, the authority must refer a development application in the merit track to the Conservator if the application relates to any part of a site declared by the Conservator under section 61 of the Tree Protection Act 2005 (regulation 26(2) of the Planning and Development Regulation 2008 (ACT)). If the authority refers a development application to the Conservator, the Conservator must give the authority advice in relation to the development application (section 149 of the Planning and Development Act 2007).

In addition, if the Conservator believes that a development will damage a protected tree or affect a tree protection zone or declared site, the Conservator can give written advice to the planning and land authority about the development (section 82 of the Tree Protection Act 2005).

The authority’s decisions cannot be inconsistent with the Conservator's advice (section 119(3) through to section 128(3) of the Planning and Development Act 2007), with certain exceptions (section 119(2) of the Planning and Development Act 2007 and section 128(2) of the Planning and Development Act 2007).

For more information please refer to the detailed chapter on Tree Protection provided by the Environmental Defenders Office which can be accessed here.

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