Days out from Council's first meeting of the new term, Spark takes a critical look at an issue that has angered arborists, saddened ecologists, confused the community and characterised the long and successful campaign by the Shoalhaven Independents to oust Greens from Council.
by Cat Holloway /
Shoalhaven’s new councillors will confront four highly controversial planning, sustainability and Indigenous culture issues at their first Ordinary Meeting on Monday in the Nowra chambers.
With Mayor Patricia White and a majority of councillors elected last month embracing a ‘Roads, Rates and Rubbish’ mantra, it’s notable that their first actions involve none of those things. Instead, Shoalhaven Independent Group (SIG) councillors will come out swinging to have Council:
- Revert to the old 45-degree rule for tree removal
- Revert to holding Shoalhaven Australia Day Awards on January 26
- Rescind the motion for a temporary moratorium on zombie developments
- Rescind the motion to explore caps on short-term rentals in new housing
All seven SIG candidates campaigned as independents despite SIG being a registered political party. So, it will be interesting to see if they vote together on SIG’s mission to take Shoalhaven into the future by going back in time.
In the case of the Shoalhaven Australia Day awards, Mayor Patricia White will need to change her own mind to vote with her SIG colleagues.
Last June, all 13 councillors voted unanimously to join more than 80 other councils around the country to host local awards ceremonies and community events on a day close to, but not on, Australia Day, January 26.
The vote acknowledged that Australia Day is increasingly seen as a divisive day of mourning rather than celebration as modern, multicultural Australia wrestles with its fraught historical relationship with First Nations people.
Monday’s motion from new Shoalhaven Councillor Peter Wilkins seeks to unpick that stitch, asserting that holding all events on Australia Day, January 26, will unite the community.
The rescission motions on zombie developments and holiday rentals were launched by Mayor White and two now-retired SIG councillors in the final moments of the last council.
These are complicated planning issues, and White’s pursuit of overturning those decisions cements SIG’s commitment to two goals that look set to define Shoalhaven’s new council:
- punishing the previous progressive councillors for their one-term majority
- aligning Shoalhaven Council closely - again - with the desires of developers
Of these four hot topics up for debate, the 45-Degree Rule is the most emotive. It also screams that Shoalhaven Council is special, with our people, arborists and trees deserving different treatment than the rest of NSW.
The 45-degree Rule is unique to Shoalhaven. It is a Development Control Plan exemption that exists in no other council. It allows landowners to remove tree trunks or branches within a 45-degree angle of an approved building without gaining Council consent.
Elsewhere in NSW, where the 45-degree rule does not exist, landowners can remove a tree on their property if it is dead, diseased or dangerous.
If a tree poses an imminent threat to human life or significant property, it can be immediately removed without Council approval and with assistance from NSW SES or a qualified arborist.
Site-specific policies regarding tree removal do differ from council to council, but the State Environmental Planning Policy 2021 and Development Control Plans guide local decisions.
According to former Liberal MP, Professor Rob Stokes, Shoalhaven Council should get rid of the 45-degree rule.
It was Stokes who, in 2019, as the Liberal NSW Planning Minister, triggered vehement argument by directing Shoalhaven Council to examine the validity of the 45-degree rule and its potential for encouraging ‘perverse outcomes’.
Speaking to Spark today, Professor Stokes said the 45-degree rule was a knee-jerk response to a single tragic incident and that it created confusion and fear while ‘devaluing’ the Shoalhaven.
He said existing statewide tree preservation or removal policies generally worked well, but “if anything, the law is too permissive and allows some people to get away with taking out important, safe trees.”
He cited multiple long-term studies as evidence that urban canopy loss damaged ecological diversity, increased energy costs for consumers and lowered the value of real estate.
“What makes Shoalhaven special is the region’s beautiful environment,” Professor Stokes said.
“The people of Shoalhaven, in supporting the 45-degree rule, are acting against their own best interests of maintaining the green, leafy environment that brings people here in the first place.
“The original 45-degree rule was unnecessary red tape, and the amendments have created even more needless bureaucracy.
Stokes, a lawyer, Member for Pittwater for 16 years, and now Industry Professor of Environment and Sustainability at Macquarie University, said Shoalhaven’s new council should “deal with the zealotry or ideology and apply the common sense test”.
He said environmental conservation fits naturally with conservative politics.
“But those who prioritise self-interest and an individual’s right above all are not conservative - they are neo-liberal extremists,” Stokes said
The 45-degree rule was introduced in the Shoalhaven in 2004 after Council was sued over the tragic death in 1998 of Gordon Timbs. Mr Timbs died in his bed when a 25m spotted gum tree fell on his home. He had twice unsuccessfully sought permission from council officers to remove four trees on his South Nowra property.
His widow, Carlene Timbs, took legal action against Shoalhaven Council and ultimately was awarded $743,000 in damages.
Initially, in 2003, the district court judge cleared Council of responsibility over Mr Timbs’ death, with Judge Bill Nash concluding Mr Timbs did not lop the tree because of the expense and was thus unlikely to cut the tree down even if granted permission.
However, in 2004, the NSW Supreme Court of Appeal found Shoalhaven City Council was liable for the death of Gordon Timbs as they had provided advice, so taken on a duty of care.
The almost immediate introduction of the 45-degree rule became a spring that fed broader contempt and dissent welling up against Councillors and staff. Some residents claimed Council ‘put trees before human lives’ while others called the proponents of the 45-degree rule ‘denyosaurs’.
In 2023 Council began a trial of amendments to the rule, including protecting trees with hollows or nests, requiring AQF Level 3 arborists to complete tree removals and asking landowners to self-report.
However, tempers flared in Council and across local media platforms when local arborists without Level 3 qualifications felt their livelihoods were threatened.
Council voted to re-word the 45-Degree Rule amendment trial to allow any ‘qualified and experienced’ arborist to undertake tree removal.
A report to Council on the outcomes of this 12-month trial is now due. But Mayor Patricia White will not wait to move a motion on Monday that Council revert to the original 45-Degree Rule and re-name it The Gordon Timbs 45-Degee Rule.
Professor Stokes said Council would be better off spending resources on encouraging professional arborists to become competent and certified. He said there was a framework for recognition of prior experience for older arborists to meet new requirements.
“If you need to get a higher level of certification to meet safety requirements, suck it up and get it done like everybody else,” Stokes said
He also said it was incumbent upon Council to be reasonable and efficient, not time-consuming and costly, to ensure community members worked with Council for the good of the region.
He said arborists were crucial to educating people about tree trimming, examining tree health and reminding landowners that they do not have an automatic right to clear their property unless a tree poses a danger.
Spark spoke off-the-record with two local arborists about division within their industry resulting from confusion over the 45-Degree Rule and the amendments.
But both operators believed that most clients favoured highly qualified arborists to advise them on how to save trees rather than get rid of them entirely.
As one local arborist said: “We’re not out to butcher trees, we love trees too.”
