Amenity enhancement and biodiversity conservation in Australian suburbia

• Author: Andrew H. Kelly
• Position: Faculty of Law, Humanities and the Arts, Institute for Conservation Biology and Environmental Management, University of Wollongong, Wollongong, Australia

Introduction

Effective management and conservation of Australian urban bushland is paramount. It deals with both amenity and biodiversity conservation. After early European settlement ( Frawley, 1992 ; Heathcote, 1972 ), however, maintenance of native vegetation was seen as needless. Land clearance for agricultural purposes to feed the burgeoning colony of New South Wales (NSW) was far more critical. Indigenous trees remained in gullys and sideslopes which were difficult to develop ( Schoer, 1983 ; see also Ives et al., 2010, 2005 ; Burgin, 1995 ). These areas often became public reserves. This suited residents in affluent suburbs who were able to view spectacular indigenous tree species, such as the angophora costata (Sydney red gum) nestled into steep Hawkesbury sandstone, from their front porches. They were at a safer distance from dangers such as falling branches or brown snakes. At the same time, householders could also reproduce their own picturesque and safer English-based gardens on their own land as an extension to their residential buildings ( Hall, 2010 ).

Since the late 1960s, “modern environmentalism” challenged the above perspectives by a raft of potentially protective law, policies, community action and public education. But the results have been far from uniform. Consider the difference, for example between environmental eruptions ( Powell, 1993 ), such as building dams and coal mining, to protecting suburban ecology on street verges. Yet as Kirkpatrick (1994, p. 47) observes, “some of the rarest plants are now confined to bush remnants in cities” ( Ruming et al., 2012 ; Ives et al., 2010; Hall, 2010 ). There is also a constant onslaught of weeds ( McKinney, 2002 ). It is the suburban sphere administered by local government, especially private open space –, i.e. residential gardens – that is the nub of this paper. Of course, residential occupants can use their front and backyards according to their preferences ( Head and Muir, 2007 ), such as planting vegetables, establishing playgrounds and creating and/or maintaining their gardens with a mixture of indigenous and exotic plants. The aim is to explore one statutory means to preserve vegetation on private open space, namely the regulatory “Tree Preservation Order” (TPO).

TPOs provide a key mechanism in attempting to maintain “green amenity” throughout Australian suburbs and townships. Discussion is limited to NSW; the nation's most populous of the six states with Sydney, the first British settlement, as its capital. As will be seen, TPOs have derived from UK legislation. Yet each Australian jurisdiction has its own formulae to protect residential vegetation. While the same basic principles apply across the continent, each state or territory has its own regulatory details and idiosyncrasies. For instance, TPOs in NSW have recently been rebadged as instruments for “preservation of trees or vegetation” (PTV) (see Environmental and Planning Assessment Act 1979 (NSW) (EPAA), Section 33A; Standard Instrument – Principal Local Environmental Plan, PTV, clause 5.9). Its statutory objective is “to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation” (see clause 5.9(1)). As a result, it aims to embrace both enhancement of amenity and biodiversity conservation. The language suggests that the two very different concepts can coincide.

As the narrative concentrates on residential lands, there are various related ways in which front and back-yards can conserve local vegetation. For example, the approval of a new (or extended) building or residential subdivision might demand the retention of allocated trees on the site. This is likely to lead to certain vegetation being marked or even fenced for protection as indicated on the site plan. Alternatively, the plan might indicate where new specified trees must be planted as a result of others being destroyed. The consent might involve both situations. In contrast, the TPO/PTV arises when a tree or vegetation is intended to be removed or damaged, or even after this has unlawfully occurred. It crops up at a different stage, often when a dwelling was built some time ago. It relates to approval of vegetation “loss” rather than the perceived “benefit” of new development. At the same time, built development tends to reduce land for economic improvement. As cities expand, residential front and back-yards are becoming smaller while houses are larger ( Hall, 2010, 2007 ). At the urban periphery, the relentless “urban sprawl” marches onward “across far-flung suburbia” with scant opportunity to maintain green amenity let alone encouraging biodiversity ( Kelly and Little, 2011, p. 174 ). This adds further fuel to the need to consider the potential role of TPO/PTVs.

This article contains several limitations. First, the paper does not cover rural areas where the Native Vegetation Act 2003 (NSW) (NVA) overrides the TPOs and PTVs ( Ogle, 2011 ; Farrier et al, 2007 ). The NVA provides a far more complex and complex system than TPOs with its potential for offsetting biodiversity conservation and property vegetation plans to avoid the approval process. In contrast, TPOs are an almost ancient device relating to local urban landscapes alone. Second, there is no reference to the role of the commonwealth due to its narrow express legislative powers in the environmental field. As a result, the paper focuses on local government, which is not only the creature of state parliaments but is closer to the environmental coalface.

Historic background

Exploration of current local government law demands consideration of the past ( Wilson and Game, 1998 ). This is certainly the case with Britain's wartime Town and Country (Interim Development) Act 1943 (UK) (T&CD Act 1943) which, for the first time, presented the option for local governments to adopt TPOs ( Booth, 2003 ). This arose well over 30 years since planning law was introduced in 1906, which then launched the preparation of “planning scheme ordinances” (PSOs) containing land-use controls. But the T&CD Act 1943 at Section 8(1) enabled an authority to insert provisions under an “interim protection order” into an existing PSO for “preservation of trees or woodlands”. In relation to a situation where a PSO was incomplete, TPO provisions could be added into the compulsory interim plan. In both circumstances under Section 8(1)(a), the instrument prohibited, subject to exemptions, “the cutting down, topping, lopping or willful destruction of trees” without consent. As will be seen, a similar version was soon grasped by Australian urban local authorities. Other than addressing war-time urban destruction, the T&CD Act 1943 commenced amenity-based provisions by protecting “historic buildings” and “introduction of the list as a means of identifying buildings of significance” ( Booth, 2003, pp. 95-96 ). In considering the Bill, the House of Lords paid minimal attention to the TPO provision. The Lord Chancellor ranked it as falling into the basket of clauses that needed no explanation. Accordingly, its introduction must have been widely acceptable.

Prior to the T&CD Act 1943, a series of statutes had already embedded land-use planning law. The first was the Housing, Town Planning, etc. Act, 1909 (HTP Act 1909) which, despite its emphasis on improving housing, introduced zoning provisions to Britain for the first time ( Booth and Huxley, 2012 ). Whilst its application was limited, it embraced the elusive term of amenity into the planning equation with the “general object” being to “secur[e] proper sanitary conditions, amenity and convenience in connection with the laying out and use of the land” (see Section 54(1). Amenity has not been defined in British legislation ( Booth, 2003 ; Cullingworth, 1967 ), which has carried through to Australia. It has always been glued in evaluation of developments ( Stein, 2008 ; Punter, 1986 ; Smith, 1974 ) despite its elusive nature ( Kelly and Little, 2011 ; Smith, 1974 ; Wilcox, 1967 ; Minister of Local Government and Planning, 1951 ).

In introducing the Bill, John Burns, the President of the Local Government Board, asserted that the impending legislation would “secure, the home healthy, the house beautiful, the town pleasant, the city dignified and the suburb salubrious” (Parliamentary Debates, UK House of Commons, Hansard, 960-61, 12 May 1908). Such promises received mixed praise ( Booth, 2003 ; Cherry, 1996 ; Herbert-Young, 1988 ; Sutcliffe, 1988 ). Ashworth (1954, p. 234) goes as far as describing the HTP Act 1909 as suffering from “still-birth”. Notwithstanding this, the HTP Act 1909 was a pioneer in providing the first step towards the Town and Country Planning Act 1932 which extended planning regulation to cover existing developed areas as well as those handpicked for growth ( Cherry, 1996 ; Cullingworth, 1967 ). While introduction of TPOs waited until 1943, the system was substantially rewritten by the Town and Country Planning Act of 1947 (while retaining the TPO). Australian jurisdictions, however, were to cling to Britain's pre-1947 regulatory approach in setting up their own individual planning systems ( Wilcox, 1967 ).

Fogg (1985, p. 260) regards planning schemes made under the UK's 1925 and 1932 Acts as the “progeny” to Australian zoning plans. Auster (1985, p. 6) tracks the beginnings of statutory zoning plans to the pioneering Acts of 1909 and 1919 that comprise “part of Australian planning history”. But three further facets influenced the notion of urban amenity in early NSW planning law. First, in 1909 the NSW Government instituted the Royal Commission into the Improvement of Sydney and...