TREE REGISTER

Lipshutz moved motion not to accept Tree Register. Seconded by Okotel.

LIPSHUTZ: started by saying that this has been up at council many times and that it’s a ‘vexed’ issue and many in the community want a register for the ‘best of our best trees’. Claimed that it was ‘a very long and ardous process’ that the Local Law Committee went through in trying to determine how this could be achieved and the other major consideration was the ‘protection of property rights’ and ‘the two don’t mix’. Said that trees on public land are ‘protected’ by council but this is ‘your own land’ and you should be able to protect that ‘as you wish’. Went on to give example of someone with a significant tree and ‘if they want to develop their land’ then ‘they will not be able to do so’. There’s also the question of ‘how do you determine what is a significant tree?’. Problem is that ‘some third party’ will ‘make that decision’ and that worries him. Said that heritage advisors come along and decide that something is heritage ‘when many people think it is not heritage’ so then they ‘can’t develop can’t do what they want to do on their own land’. In his opinion when ‘you buy your land it is your land’ so you can ‘deal with it as you wish’. Gave the example again of when he bought his place and there were trees which he kept but over the years they’ve now gone. He isn’t referring to ‘moonscaping’ because what he’s on about is simply ‘people who want to develop their land’. In the end it’s a ‘toss up’ as to what people think is more important – ‘other people’s trees’ because no-one ‘really puts their own trees on the register’ or ‘property rights’. He thinks property rights are important and that’s why there is the motion.

OKOTEL: thought that council already has ‘appropriate mechanisms in place’ to stop moonscaping and removal of trees. Went through the options in the officer’s report and said that trees are ‘protected’ under ‘our current scheme’. Said that ‘we do have regulations against moonscaping’ such as the penalties. Admitted that the register was only applicable to trees on private and not public land. Said that it is ‘incumbent’ on council to look after trees that ‘are important’ on public land and that at times councillors have ‘robust discussions’ about chopping down trees in parks that are ‘dear’ to residents and that she ‘would welcome’ the community having input into those trees about whether they should be ‘retained or not’. But in relation to the motion she thought that the ‘only appropriate action’ for council was not to impinge on property rights. People themselves are ‘capable’ of looking after their own trees ‘if it is important’ to them and if they’ve got a ‘sentimental attachment to the tree’ or ‘if it is particularly beautiful’.  So in these circumstances people would ‘themselves look after’ that tree so there is ‘no need’ for the register. ‘Endorsed’ Lipshutz’s comments that ‘at the end of the day it is someone’s property’ and they should be able to do ‘what they like, of course, within limits’. Having a tree register will be ‘costly to council’ and it’s not ‘cheap to hire consultants’ to go round identifying trees, ‘prosecute people’. Rather than spending money on this she’d be in favour of using that money to plant more trees. Thought that planting trees in streets where there aren’t trees and around roundabouts would be a ‘far more useful’ use of money than a register and forcing people to ‘maintain trees that they may not want’. People should be able to make decisions about ‘what’s best for their property’ and even ‘what’s best for their tree’.

SOUNNESS: said he’s got a view of the local law and would expect that it shouldn’t be so ‘obstructive’ and ‘bureaucratic’ ‘as the current one’. Whilst the community plan recommended the ‘introduction of a local law’ he feels that ‘there was a lost opportunity’ to find out from the community what ‘kind of local law’ they are ‘amendable to’. Said that his preferred option would be to discover how the community and council can come to some resolution on how best to preserve the ‘residential landscape’. Thought that what is presented is ‘the wrong approach’ because there are ‘many ways of doing things’. As it stands there are opportunities for appeal but that would take ‘weeks, months’ and then other people would sit on the review. Said that the East West tunnel proposal has got less appeal rights than this document for a tree. ‘Recognised’ that trees are ‘an emotional matter’ and that council has got a duty as ‘custodians’ but that council ‘could be more friendly’ to residents who want trees protected. Accepted that the planning scheme provides protection and this was ‘valuable’ but there’s the need for ‘more conversations about that’. Said he’d vote against the motion and if lost then he is foreshadowing another motion – that council accepts Option B. (ie planning scheme amendment).

MAGEE: said that his view is ‘selfish’. He’s in favour of council protecting trees in parks and on nature strips but on private land that’s something that ‘belongs to myself and my family’. And from this he thinks that only he and his family have got the ‘right to decide what trees grow on our land’. Said he’s lived on his block for 27 years and it’s been cleared twice and revegetated and he is even thinking now of putting in a swimming pool, so the land will be cleared again. ‘I will fight for my right and my neighbour’s rights’ to do what they want with their land. Residents have got the right to ‘decide what tree they plant’ or ‘whether they take it away’. Went through the current ‘protections’ from the planning department. Claimed that ‘99% of those who live in Glen Eira would not deliberately destroy their gardens’. A tree register ‘is fine on council land, but not on my land’.

ESAKOFF: shouldn’t have controls on people ‘in their own gardens’ from pruning. She is ‘a firm believer’ that people ‘love’ the trees they’ve got in their gardens and they don’t remove them ‘unless there’s a valid need to do so’. Didn’t think that council has the ‘right’ to impose restrictions on what people ‘can do in their own gardens’ since there’s already enough ‘red tape and hoops for people to jump through’. Went on to say that all the complaints that she’s heard about relate to moonscaping and developers and not one about what people do in their ‘back gardens’ and there are good protections currently existing via what council already has to deal with moonscaping.  Mentioned ResCode and how this ‘removes the advantage that developers gain’. Permits also come with conditions that trees can’t be removed but this also has a ‘down side’ because years later there’s the request for a change in condition so these trees which are now ‘causing damage’ can be removed. There have to be avenues of appeal with the tree register because that would make it ‘fair’ and to remove ‘those rights of appeal would not be a fair process’. Said that ‘my position remains unchanged’ and that she is against ‘tree control in Glen Eira’.

PILLING: said there’s a ‘lot of history’ here and it’s not about ‘tree control’ but ‘tree register’. Part of community plan as well and it’s not about ‘being selfish’ as Magee stated. Said that many ‘councils have the approach’ of Option C (ie local law). Went over some of the history such as previous council’s majority vote to go ahead with register. Thought this was a ‘modest, reasonable proposal that most other councils do’. Thought that the community would readily accept this. That was already approved with the approval of the community plan but ‘what’s come back’ from the local laws committee is ‘way over the top’ and that the committee has been ‘over zealous’ . Also thought that the argument on ‘property rights’ was ‘way overstated’ since there already are many laws which restrict what property owners can do such as fences, pergolas, etc and this is ‘no different’.  Said if the motion failed then he’s also foreshadowing a motion that this go back to the local laws committee and that they ‘redraft’ a proposal on the ‘same basis’ as other permits.

LOBO: said that the vast majority of residents believe that councils only deal with ‘rates, rubbish and roads’ even though they keep saying ‘in chambers’ that councils do much more.  Thought that having a tree register is ‘a dictatorial way’ since ‘we are saying that this tree in your house cannot be touched’. Went on to extrapolate from this by saying that ‘tomorrow we will say’ that ‘this child of yours cannot get married’ and ‘this child of yours cannot leave the house’. Didn’t understand why anyone could ‘come in my yard and look at my tree’ and they could even ‘look through the toilet’. Said he was ‘against this and I agree with Cr Sounness’.

HYAMS: began by saying that if Lobo was against the register then he shouldn’t be agreeing with Sounness. Didn’t agree with Lipshutz but did agree that it’s about ‘competing considerations’ such as protecting ‘people’s property rights’ opposed to ‘protecting neighbourhood character’. Admitted that it’s ‘not quite true’ that council doesn’t interfere with ‘people’s properties’ and gave the example of the new zones where 80% of people are told that they ‘can only build 2’ units on their land. So ‘regardless of what they want to do’ this is now the situation. Same applies for heritage areas. Overall, ‘it’s a balancing act’. Current planning law is ‘about any tree on the property’ and not just ‘landscaping’, so ‘we already do that’ (ie protect what’s on private property) and ‘no one is saying we shouldn’t do that’. It’s not about ‘protecting every tree in Glen Eira’ but just those deemed ‘valuable’. Not saying ‘you can’t prune the tree’ because the local law says you can prune up to 25% of the tree ‘before it’s considered lopping’. Aim is to ‘strike a balance’ between protection of neighbourhoods and ‘letting people do what they want on their own property’ and a tree register ‘does that’.  So he’s in favour of a ‘minimal’ tree register in contrast to what other councils have.

LIPSHUTZ: said that when the local laws committee first started thinking about the issue they knew that council just wanted a ‘bare bones’ register. But with investigation they found that it was ‘not possible to do that’. Said that Sounness’ and Pilling’s argument about the East West tunnel and the lack of appeal rights is correct, but that doesn’t mean that just because this project hasn’t got enough appeal rights that ‘we shouldn’t have appeal rights here’. Said that there is a ‘whole raft of potential issues’ that have to be taken into consideration like classifying the tree in the first place. Someone who nobody knows, and perhaps nobody trusts comes out to make the decision. What happens then if someone says it’s a classified tree and someone else says it isn’t? That’s why there are appeal rights. Then the tree may be ‘knocked down’ and the owner claims it was dangerous and someone else says ‘no it wasn’t’ and that a planning permit should have been gotten to start with.  So people  have to ‘have appeal rights’. ‘The more and more we went along’ the committee found that it became ‘more and more difficult’. The real issue however is ‘whether we have the tree register at all’. If there’s a register then in his view you ‘can’t have a bare bones law’ but something that ‘deals with every eventuality’ so that in the end it ‘becomes quite complex’. ‘Do we want to dictate to our neighbours that you must have this or not’. He would guess that Glen Eira has got plenty of significant trees but if council approached the owners and said we think your tree is significant and ‘would like to put a covenant on your property’ they would be opposed. He thinks that it would be ‘some third party coming along’ and demanding that trees of neighbours be put on the register. If by chance there are owners in Glen Eira ‘who are so committed to their trees’ then ‘they are welcome to put covenants on their property’.

MOTION PUT AND VOTE WENT 4 TO 4. VOTING FOR THE MOTION NOT TO HAVE A TREE REGISTER – LIPSHUTZ, ESAKOFF, OKOTEL AND MAGEE. VOTING AGAINST MOTION – LOBO, PILLING, SOUNNESS AND HYAMS.

HYAMS: said that he was ‘surprised’ at Lobo’s vote for a tree register given that he ‘had spoken so much against the tree register’

LOBO: claimed that he had changed his mind after ‘hearing you and Michael’ – ‘that’s my prerogative’.

HYAMS: confirmed that it’s Lobo’s prerogative and that he would be voting against the motion with his casting vote.

MOTION THEREFORE LOST AND PILLING MOVED MOTION THAT THE REGISTER GO BACK TO LOCAL LAWS COMMITTEE AND ‘TONED DOWN’ AND BE ON THE BASIS OF OTHER COUNCILS. SOUNNESS SECONDED.

Both Pilling and Sounness affirmed that they had already made their views known so didn’t speak to the motion. Okotel spoke again.

OKOTEL: said that the issue now revolved around appeal rights and that in other aspects like planning there are appeal rights which are ‘exhaustive’. Said that with planning objectors have rights to make submissions to council, attend dpc or planning conferences and ultimately vcat and even further to the supreme court. Even on simple infringements people can appeal to council, then if not happy to the courts, and all of these involve ‘lengthy periods of time’ and if still unsatisfied people can go to county courts, magistrate courts and then again to supreme court. So for a minor traffic offence of $50 there is leeway to do all the above. Claimed that with the tree register appeals a court won’t ‘deal with such matters’ so there has to be something in the local law that provides that.

LIPSHUTZ: doesn’t support register but if council is going to have it then he’s in favour of 4.1 rather than 4.2. SAid the appeal rights cover all possibilities and ‘allow for representation’ which is important since not too many people know anything about trees. ‘I know nothing about trees, I should be able to have representation there’. Same for damaged trees and if you claim you didn’t damage it and that someone else did, so there ‘ought to be appeal rights’. With a ‘bare bones law’ you can’t ‘have that’ and ‘you have to have appeal rights’.

ESAKOFF: agreed with Lipshutz and that if ‘you don’t like dictatorial government’ then ‘you’ve got it in 4.2″ whereas 4.1 ‘leaves avenues of appeal’.

HYAMS: reminded people that if the motion is passed then there still isn’t a tree register but just sending it back to the local laws committee to ‘redraft’ and then ‘putting it out to public consultation’ with the ‘rest of the local law changes’. Then after this ‘consultation’ they make the decision about ‘whether there should be a classified tree register’. ‘This is the opportunity to find out what the community wants’. If they don’t ‘put it out for community consultation’ then there might be a ‘backlash’ and people saying that’s it’s an infringement on property rights. So Hyams would accept the public views. Said that he ‘wasn’t comfortable’ with either 4.1 or 4.2 because as it stands it’s ‘a bit too comprehensive’  but on the other hand comparing it to other sections of the local law because ‘it is more of an impingement on people’s rights’ than some of the other things in the local law. ‘There should be some appeal rights’ but not sure ‘where they should be’. Said that he’s not voting that ‘there be a classified tree register’ but just moving the process along and ‘to see what the community’ thinks so he will support Pilling’s motion. He also noted that he is probably speaking for Delahunty as well given her views on the subject.

PILLING: re-read the motion. Lipshutz brought up a point of order that what Pilling read out wasn’t ‘what was originally put to council’. Pilling read the motion again. Agreed with Hyams that this was another step in the process and that there would be community involvement on ‘whether they do want a tree register’ or not. This is then ‘the best way forward’.

MOTION PUT and CARRIED. LOBO ASKED FOR A DIVISION. IN FAVOUR – SOUNNESS, HYAMS, LOBO, PILLING, MAGEE. AGAINST – ESAKOFF, LIPSHUTZ, OKOTEL.

COMMENT

Several things need to be made 100% clear. With typical sleight of hand, Hyams and then followed by Pilling, argue that what will happen is that the community will be ‘involved’ in deciding whether they want a tree register or not. NOTHING COULD BE FURTHER FROM THE TRUTH! When the Local Laws Committee finally gets its act together and produces the draft law, then the LAW will be put out for submissions under Section 223 of the Local Government Act. This will not be a ‘consultation’ on whether or not the community wants a tree register, but what their view is of the proposed local law addressing the issue. If council was really interested in gauging community feeling on the issue then it could have done this years ago. A simple question such as ‘Are you in favour of……..’ would have sufficed. This has NEVER BEEN DONE and this process will not allow this either. This is not ‘consultation’ on the issue – it is anything but satisfactory consultation – especially when this section of the local law will be enmeshed in countless other ‘changes’ such as the organised sport, (can’t wait for that one and what happens to Frisbee!) and hopefully meeting procedures.

We also need to point out that when Lobo voted FOR the tree register the look on Hyams’ face was priceless. We can only assume that Hyams would have thought that the ‘no tree register’ gang had the motion in the bag and thus he would not be called upon to exercise his casting vote. Having basically spruiked in favour of the register, he was now beholden to vote accordingly and use his casting vote to oppose Lipshutz, Okotel and Esakoff. If planned by Lobo, then we congratulate him on his political manoeuvring!

Finally, we remind readers that in February 2013 when the Tree Register was last on the agenda, Magee voted in favour. Time can certainly do strange things to men of principle!