A protected tree in Manuka has been at the centre of a potentially precedent-setting legal battle between one of Canberra's best-known property developers and the territory's Conservator of Flora and Fauna.
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The case centred on property developer Sotiria Liangis' company Liangis Investments applying in November last year to de-register the protected London Plane tree on the block also housing the Capitol Cinemas Manuka.
The Conservator of Flora and Fauna, Annie Lane, rejected the application, sparking Mrs Liangis' company to appeal the decision to the ACT Civil and Administration Tribunal, which dismissed the application last month.
But the case has highlighting drafting errors in amendments made to the ACT's Tree Protection Act in 2009, which could have wider implications for more than 100 other protected trees across the nation's capital.
The battle over the tree continues, as Liangis Investments had applied for permission to conduct a "tree damaging activity" in July this year, potentially including its removal, which is expected to come before the Tribunal again next year.
Liangis Investments' barrister, Philip Walker SC, had argued before the tribunal that the the right to apply to remove a tree from the register should be vested in the lessee of the land upon which the tree stood.
The ACT Government Solicitor, acting for conservator Lane, instead argued the legislation should instead be interpreted as vesting that right in the original nominator of the tree to the register.
But in her decision, Presidential Tribunal Member Mary-Therese Daniel wrote that the government solicitor's argument was an "absurd" one, and if taken on, "in many cases the nominator would be a human being and therefore of significantly shorter life span than the registered tree".
"The registered tree may live for hundreds of years, and a decision about cancellation may need to be made even centuries after the original nomination," she wrote.
"It would be strange to find that the legislation vested the right to review a cancellation decision in a person who is long dead."
Ms Daniel wrote the errors could be down to "a mistake of the 'cut and paste' variety" in a wide-ranging 2009 amendment bill that changed the review provisions of many Territory laws, including the original Tree Protection Act.
She wrote that given the "sheer scale" of the 691 pages of those amendments, "it would not be surprising to find an accidental slip".
While Ms Daniel lent towards Mr Walker's argument, the Tribunal had to deal with the matter in line with the existing legislation and it was "not for the Tribunal...to make what is effectively a policy decision".
"The defect in the review provisions, which results in there being no exercisable right of merits review in relation to a cancellation decision, can only be rectified by the legislature, not by a process of interpretation," she wrote.
A spokeswoman for Transport and City Services Minister Meegan Fitzharris said in a statement the government would be seeking advice from the government solicitor's office "particularly in relation to the process for de-registering a tree", and would be examining the case "before any changes are made to the Tree Protection Act".
While a spokesman for the conservator confirmed an application to undertake a tree damaging activity on the Manuka was received in July this year, he said the government would not be commenting further as it was still before the Tribunal.
The Canberra Times contacted a number of local community groups, Mrs Liangis and Mr Walker's office, but all either declined to comment for this story or did not return calls.
Do you know more? Email: daniel.burdon@fairfaxmedia.com.au
