167

ORDINARY MEETING 9 27 OCTOBER 2010

REMOVAL OF STREET TREES – ARGENTEA ESTATE PALM COVE

K Gilvear: 8/27/3 : #2765739

RECOMMENDATION:

That Council:

1. Notes the report;

2. Resolves to advise the Complainant that it is satisfied that the actions taken to date by Council officers in relation to the street trees and works in the Covenant areas are appropriate and at this stage do not warrant any formal legal action;

3. Accepts that administratively the matter could have been dealt with better; and

4. Requests an update on the status of reinstatement of street trees.

INTRODUCTION:

By letters dated 9 June 2010, 1 July 2010, 25 July 2010 and 3 October 2010, a resident of the Argentea Estate, Palm Cove, ('the Complainant') wrote to Council in regard to:

A. Tree removal from a road reserve within the Estate;

B. Works within a Conservation Covenant area; and

C. Content and timeliness of Council’s response to these complaints.

This Report has been prepared to provide Council with additional information to clarify this situation.

Agenda – Ordinary Meeting 27 October 2010 - #2756701 168

BACKGROUND:

By letter dated 9 June 2010, the Complainant raised concerns with Council through the CEO’s Office in regard to:

1. Destruction and removal of five Argentea trees along Aurelia Street, Argentea Estate; and

2. Destruction of trees and vegetation in a creek bordering a private property within the Estate.

The details regarding the facts and circumstances were provided within the information submitted, and the Complainant requested Council take steps to both investigate and punish parties found to be at fault.

Following receipt of this correspondence, Environmental Officers within Council’s Planning & Environment Department investigated the situation, and compiled information in regard to the:

A. Substance of the complaints;

B. Opportunities for rectification of the alleged breaches; and

C. Detrimental impacts of the alleged breaches.

Due to the nature of the complaint made, together with a number of staff absences, Officers failed to respond to the Complainant within the 7 – 10days specified in Council’s Complaints Policy.

By letter dated 1 July 2010, the Complainant made further request for a response from Council, and noted that the 7 – 10day response period within Council’s Complaints Policy had expired.

A response was provided by letter dated 6 July 2010. This response sought to confirm that:

A. Whilst the removal of five street trees was undertaken without authorisation, Council Officers were of the view that those trees were not suitable for the location, and would likely have had detrimental impacts upon Council’s infrastructure, and potentially resulted in a ‘trip hazard’ in that location had they not been removed; and

B. Officers were working with appropriate parties to ensure that suitable replacement street trees were planted as quickly as possible; and

C. Officers noted the increased activity within a Covenant Area attaching to an allotment within the Estate, but believed that a formal notification was all that was warranted to minimise further risk of damage to vegetation and creek bank stability within this area.

Agenda – Ordinary Meeting 27 October 2010 - #2756701 169

Unfortunately, Council’s letter of reply on the 6 July 2010 contained a number of typographical and grammatical errors. The substance and intent of the letter, however, appears to be readily ascertainable.

Following receipt of Council’s response of 6 July 2010, the Complainant made further complaint to the Mayor’s Office by letter dated 25 July 2010 in regard to Council’s handling of the complaint, and further articulating the grounds for concern. It is understood that a full copy of this correspondence has been provided to Councillors separately.

The Complainant has since further articulated his concerns within correspondence directed to the Mayor and Councillors by letters dated 1 October 2010 and 3 October 2010 respectively.

COMMENT:

The following is an outline of the three issues of concern to the Complainant:

1. Removal of five street trees from Aurelia Street, Argentea Estate;

2. Works within a Conservation Covenant attaching to an allotment adjacent to a Waterway within Argentea Estate; and

3. Dissatisfaction with Council’s response to the complaint, both in terms of the content of a Council letter, and the outcome of Council Officers investigations.

In regard to these issues, Officers note:

1. Removal of Street Trees:

Officers remain of the view that whilst the removal of street trees from Aurelia Street has had an impact on the amenity of this streetscape in the short term, replacement of the trees with mature stock of an appropriate species will return the street to its former state.

In regard to addressing the complaint, an Officer from Local Laws and an Environmental Officer met on site on 25 June 2010, with the party alleged to have removed and destroyed the street trees in question. During this meeting, the resident in question admitted to removing five specimens of Melaleuca from the footpath as the surface roots were becoming an eyesore, difficult to mow around and potentially dangerous to pedestrians who use the footpath at night as some surface roots protrude up to 80 mm above the level of the lawn. The resident replaced the five trees removed with specimens of Golden Penda (Xanthostemon chrysanthus) and installed root barriers in accordance with the requirements of the FNQROC Development Manual.

Agenda – Ordinary Meeting 27 October 2010 - #2756701 170

The approved street landscape plan for this area within Argentea provided for specimens of Melaleuca argentea to be planted. Since the completion of this stage within Argentea, Officers have undertaken investigations regarding which species were actually planted, and it is apparent that street trees throughout this area of the Argentea estate are a mix of both Melaleuca argentea and , with the latter species being the most common in the area examined. The surface root problem described by the resident appears to be more regularly associated with Melaleuca fluviatilis but may also involve Melaleuca argentea in other parts of the estate.

There are several reasons why surface roots develop on street trees:

● Some species of tree almost always develop surface roots; ● No root barrier has been installed; ● Root barrier has been installed too low; ● Nature of soil; ● Poor root formation prior to planting; ● Planting too shallow; or ● A combination of any or all of the above.

Council’s Arbourist has inspected specimens of Melaleuca fluviatilis adjacent to the specimens removed and advises that some of the existing specimens of Melaleuca will also have to be removed. Some may be saved at least in the short term by installation of root barriers, removal of some roots and surface dressing of the footpath. Treatment used will vary from tree to tree. Another option to be considered would be to remove and replace all problem trees. Council's Arbourist also advises that it would be unwise to use Melaleuca fluviatilis as a replacement tree. It is understood that the Developer of the Estate is in the process of arranging replacement Melaleuca argentea for this area.

Fig. 1 Surface roots of Melaleuca fluviatilis at Lillian Road, Palm Cove

Agenda – Ordinary Meeting 27 October 2010 - #2756701 171

Fig. 2 View of existing street trees & replacement trees.

The 'mixing' of species of Melaleuca within the Estate is likely to have occurred at the nursery supplying the developer. Unfortunately, the discovery that a non-approved species was utilised only occurred following concerns being raised by residents and Officers within Infrastructure Management, and the discovery had to be confirmed by the Herbarium.

Officers are continuing to work with the Developer in regard to selection of a suitable species to replace the trees removed (as the Golden Penda replacement is not acceptable). Issues yet to be resolved include who will pay for the replacement species, and what species is to be utilised. The Melaleuca Argentea, whilst acceptable with the right planting conditions and location, may not be an acceptable replacement, as it cannot be sourced locally, and some specimens of this species are demonstrating root problems of a similar nature to the Melaleuca fluviatilis.

In regard to the removal and destruction of the trees in question by a resident within the Estate, and the Complainant's request that a formal sanction be issued by Council, Officers note that:

- Such formal sanction for such actions is not provided for within relevant legislation or Council Policy;

- The only option to formally 'sanction' the resident in question would be to issue a Show Cause Notice and potentially an enforcement notice, which would likely have the same outcome as current discussions and negotiations will have (that is, the return of appropriate mature species to the streetscape).

Agenda – Ordinary Meeting 27 October 2010 - #2756701 172

2. Works within a Conservation Covenant Area

In regard to the complaint regarding works undertaken within a Covenant Area in Argentea, Officers met with the owner of the property in question on 25 June 2010 to discuss works, appropriate remedies and concerns regarding on-going management of the Conservation Covenant area.

During the meeting, the property owner advised that some works were undertaken within the Covenant Area for the following reasons:

- Rocks were placed in the bed of the small ephemeral watercourse as sections of the bank were being eroded;

- The ground and shrub layer removed consisted mainly of introduced weeds such as Guinea Grass and Lantana;

- A walkway and small bridge has been constructed across the creek through the covenant area to provide access to Lillian Road and a small deck appears to have also been constructed within the covenant area. The pathway and deck have been constructed in a way that has caused little serious damage to the preservation of the flora and fauna of this area, the purpose for which the covenant was created.

The resident did not apprehend, at the time of completing these works, that there would be any issue with same.

The purpose of the Covenant is to conserve the native flora and fauna located on the Covenant Area. The Covenant is 'attached' to the property title.

Whilst on site, Officers noted that the bed and banks of the small ephemeral watercourse have been lined with rock. This work required the removal of a small amount of native vegetation and the removal of several small trees such as specimens of Swamp Mahogany (Lophostemon suaveolens). The ground layer and much of the shrub layer over a large part of the covenant area have been removed. This area has been mulched with wood chips and extensively planted with both native and exotic species. Figure 3 below illustrates some of the work undertaken.

The ground layer and shrub layer in the covenant area on the adjacent property to the west mainly consists of introduced weed species such as Lantana (Lantana camara), Blue Snake Weed (Stachytarpheta cayennensis) and Guinea Grass (Megathyrsus maximus var. maximus). It is reasonable to assume that the vegetation of the ground layer of the covenant area of the lot in question was of a similar nature. Figure 4 below illustrates the vegetation understood to have existing in the Covenant Area prior to works being undertaken.

In light of discussions with the property owner, and an investigation of the extent of works on site and vegetation anticipated to have been in existence prior, Officers have requested the property owner:

Agenda – Ordinary Meeting 27 October 2010 - #2756701 173

1. Supply a plan at an appropriate scale that indicates the location within the Covenant Area of any existing structures such as pathways and decks;

2. Leave the rocks in the creek in place as their removal would only cause further damage. Whilst the placement of the rocks has had some undesirable impacts, including the destruction of several small trees, they do provide protection to the bank from future erosion; provide an excellent sediment trap and shelter for small reptiles such as skinks, lizards and other small native animals.

3. Whilst Officers are of the view that the removal of several small native trees has been off set by the planting of numerous native species, they had concerns regarding the planting of several exotic species especially Alligator Flag (Thalia geniculata) and Shoe Button (Ardisia elliptica) both of which are the subject of a Weed Watch. The property owner was therefore requested to remove all exotic plant species from the Covenant Area.

In addition to the above actions, Officers will be undertaking an annual inspection and monitoring program for Covenant Areas in this locality.

Fig. 3 View of landscape works within the Covenant Area.

Agenda – Ordinary Meeting 27 October 2010 - #2756701 174

Fig. 4 Ground cover of Blue Snake Weed, Lantana & Guinea Grass within the Covenant Area of the adjacent lot.

3. Dissatisfaction with Council’s Response

Officers acknowledge concerns raised with both content and timeliness of the response provided to the Complainant in this situation. However, Officers remain of the view that the course of action being taken to negotiate an appropriate outcome to rectify this situation (both in regard to the street tree removal and the works within a Conservation Covenant Area) is appropriate in the circumstances.

CONSIDERATIONS:

Corporate and Operational Plans:

Within Council’s Corporate Plan (2009 – 2014), the following Organisational Values and Goals are relevant:

Our Values: How Council will operate and behave

Working Together Effectively: We look for opportunities to improve the way in which work gets done throughout the organisation so that high standards of service continue to be delivered.

Agenda – Ordinary Meeting 27 October 2010 - #2756701 175

Comment: In light of the circumstances surrounding the response provided to the Complainant on 6 July, Council’s standards for correspondence have been lifted through peer-review processes.

Accountability: We accept responsibility for our own actions and results so that others can see we want to make a difference in the organisation and the community.

Accountability: We admit our mistakes and work to correct them so that others can see that we are transparent and open in our approach.

Goal 4: Delivering Services and Infrastructure Objectives: To plan, deliver and maintain the region’s infrastructure such as roads, drainage and flood mitigation and provide a sustainable high quality water supply to meet current and future needs of the community.

4.4 Deliver effective long-term maintenance and renewal of existing infrastructure and community assets.

Comment: Removal of the street trees in question will ultimately benefit ratepayers within the area, through reduction in longer term maintenance costs as a result to damage from those trees, and also a reduction in risk from claims arising as a result of ‘trip and slip’ issues.

Goal 6: Striving for Organisational Excellence

Objectives: To ensure that Council is open, accountable, ethical and financially responsible. Recognise that Council plays a leadership role for our immediate communities and for the wider region and will strive to represent our community's needs and expectations.

6.7 Consistently perform better, deliver on our objectives and operate sustainably.

Statutory:

The Sustainable Planning Act 2009 regulates the enforcement of relevant planning scheme and development requirements. The Local Government Act 2009 and associated regulations provide the framework within which Council operates.

Policy:

It is not anticipated that any specific ‘precedent’ will be created by Council’s management and response to the complaint. Given the specific circumstances of this particular issue (both the tree removal and the works within a Covenant area), and the likely outcome (being the re-planting of mature street trees of an appropriate species, and regrowth of appropriate vegetation within a Covenant area), Council Officers will continue to work with relevant parties to minimise impacts on the surrounding area.

Agenda – Ordinary Meeting 27 October 2010 - #2756701 176

Financial and Risk:

Officers have worked to negotiate an appropriate outcome to respond to the Complainants concerns to minimise costs likely to be incurred should formal Show Cause / Enforcement proceedings be commenced. Furthermore, Council Officers remain of the view that removal of the street trees in question will, in a longer term sense, reduce risk to Council.

CONSULTATION:

Consultation in regard to the Report has been undertaken with Council’s Environmental Officers.

OPTIONS:

With respect to the report it is a matter for Council to note and advise the Complainant accordingly.

In relation to the specific actions that have occurred, there does seem to be much to be achieved by commencing any formal action against the residents who removed the trees or have undertaken works in the Covenant areas. Council officers will continue to work with both the developers and the specific residents to achieve some improvements.

CONCLUSION:

Having regard to the nature of complaints made and the response of Council’s Officers, it is recommended that Council note the complaint and the actions taken to respond to same.

ATTACHMENTS:

Plans illustrating location of tree removal / destruction and Covenant Areas.

Kristy Gilvear Consultant - Planning & Environment

Peter Tabulo General Manager – Planning & Environment

Agenda – Ordinary Meeting 27 October 2010 - #2756701 177

Agenda – Ordinary Meeting 27 October 2010 - #2756701