Neighbourhood Disputes About Plants Amendment Bill (No 35) of 2019
Second reading speech
15 October 2020
Ms ARMITAGE (Launceston) - Mr President, I am pleased to speak on this bill. As the member for McIntyre said, it is something a great number of our constituents, and I dare say the constituents of other members here, deal with on a regular basis. Any legislation that clarifies the expectations, rights, responsibilities and dispute resolution mechanisms about plants in our neighbourhood is most welcome.
Indeed we have the much missed late honourable member for Pembroke, Dr Vanessa Goodwin, to thank for her steps taken towards addressing gaps in pre-existing legislation relating to disputes about plants and the effect of some on views. I actually have one at moment in the member for Windermere's electorate, my Launceston City Council electorate also, and it is a little confusing when someone has trees of a certain height blocking out a certain amount of sunlight; of course, planning says you only need so many hours of sunlight a day so there are many issues. I am pleased to see this bill coming in.
Ms Rattray - I have a pittosporum right next door to me I would like to see lopped.
Ms ARMITAGE - Historically, it has been difficult for property owners to properly navigate dispute processes regarding boundary plants which disrupt views and sunlight. Until the primary act was passed and implemented, we had very few options to pursue adequate resolution processes. Clearly, this was not conducive to supporting harmonious neighbourhoods. It is easy for someone to dismiss someone's concerns about the plants encroaching on their property views, sunlight and other amenities. However, these are real and serious concerns, especially for people who have invested their time and money into their homes, and having a meaningful way to resolve disputes about this is essential.
Many in this place know I have had personal experience of a neighbour's trees considered dangerous by myself and my other neighbour, but unfortunately no end of emails and requests over a long period prevented the tree in wind and rain falling across our properties and causing considerable costly damage - over $60 000 between the two of us. This could have been avoided had there been an opportunity for an informed dispute resolution with some powers.
Amendments being made by the bill we are currently considering make further minor but essential improvements to the scheme as it currently stands. To this end, I note the bill amends section 26 of the principal act which states the -
Appeal Tribunal … must consider whether reasonable attempts to resolve the matter to which the application relates have been made by the parties.
If not, the tribunal can direct the parties to attempt to resolve the matter using alternative dispute resolution methods, such as mediation.
Clause 5 of the bill expands consideration a full tribunal can make, allowing it to take into account any other matters the tribunal considers relevant, when it is determining whether parties have made reasonable attempt to resolve disputes. This might not seem like a terribly large difference but it will have the effect of allowing the tribunal to take into account efforts that have been made by the parties that have not necessarily been formal in nature.
The provision of alternative dispute resolution methods by this bill and the principal act is to be commended as it has a threefold benefit. The first is that is eases the heavy workload which already exists for our tribunals. The second is it encourages people to work through their disputes and come to a resolution together. The third is it also a far more cost-effective approach to resolving disputes of this nature. That having been said, however, the bill also introduces new enforcement provisions, which I note will be a rarely used tool.
As the second reading speech notes, since the act commenced operation 30 people have applied for orders of some kind, with 17 withdrawn, some not meeting the threshold with the tribunal, and some withdrawn because of mediation. I believe there was one published decision where a person went to a full hearing. As mentioned in some cases, it was noted that parties had engaged in negotiation between themselves or as a result of mediation processes with subsequent action having been taken to resolve the matters in dispute.
However, it would be a bit pointless not to build formal, robust and clear mechanisms should they be required at some time in the future. The bill inserts new enforcement provisions to allow the Resource Management and Planning Appeal Tribunal to make an order if it is satisfied the original order has not been complied within the time specified of that original order. This will allow the affected landowner or landholder to carry out the work and recover debt from the defaulting party, the reasonable expenses incurred in carrying out the work and the cost of the application. This is clearly quite a severe and significant enforcement provision, but as I say it is necessary.
The bill and the principal act both provide enough guidance and discretion to the tribunal to make an appropriate order relating to this. Moreover, the bill clarifies notice requirements relating to these enforcement provisions to give at least seven days notice of the intention to enter the land and carry out the work.
As we were told this morning in the briefing, this gives the tiger some teeth, so to speak, as the current penalty for failing to comply with an order of the tribunal is limited to contempt of the tribunal. Hopefully, the issue of these enforcement orders will be rare, but it is important it exists as an option nonetheless.
I will just reflect for a moment on the right to review, as this is something that came up reasonably often in planning matters when I was on council. I note in the briefing this morning it was mentioned that if a large tree, for example, blocks the view, the tribunal would generally consider the relevant council's planning requirements. If a house could be built on that spot, there would be little done about the tree. I accept we currently have interim planning schemes and I ask the Leader: do you have any knowledge of whether this is a change in the statewide planning scheme we have all been waiting for and asking for for some time, or whether it has not changed from current practice?
As mentioned, I think, by the member for Hobart, in the briefing this morning in regard to review, I wonder, with the statewide planning scheme, obviously that is a statewide planning scheme. It is be hoped 29 councils do not have 29 different versions. The interim planning scheme has been on foot, if you could call it that, for many years. Every year, when constituents raise concerns with me about what they can do, I am told it will be this year that it gets through. I am afraid that has probably been going on now for a number of years. I am quite sure many members have had the same discussion. It would be really good to know if it is fixed in the statewide planning scheme.
Ms Rattray - It has been around a while.
Ms ARMITAGE - It has been around a long while. The statewide planning scheme is going to need changing before it comes into place because it will be outdated.
We want our neighbourhoods to be harmonious places where people raise families and live their lives. Of course, we want people to be allowed to maintain the plants on their property, but when the amenity of other people's property is adversely affected, having good dispute resolution processes clarified is extremely important. This bill provides a good level of guidance for dispute resolution processes for applicants and the tribunal. It also promotes alternative dispute resolution methods before any significant enforcement measures can be treated.
I support the bill.