Burrell v Almajd
[2000] NSWLEC 24
•12/07/1999
Land and Environment Court
of New South Wales
CITATION: Burrell v Almajd and Anor [2000] NSWLEC 24 PARTIES: APPLICANT:
RESPONDENTS:
John Llewellyn Burrell
Ghass Almajd and AnorFILE NUMBER(S): 40103 of 1999 CORAM: Talbot J KEY ISSUES: Orders :- breach of tree preservation order LEGISLATION CITED: CASES CITED: DATES OF HEARING: 06/12/99, 07/12/99 EX TEMPORE
JUDGMENT DATE :12/07/1999 LEGAL REPRESENTATIVES:
APPLICANT:
Mr A Howen (Barrister)
SOLICITORS:
Burrell SolicitorsFIRST RESPONDENT:
SECOND RESPONDENT:
Mr O Stichter (Solicitor)
SOLICITORS:
O Stichter & Associates
Mr S Berveling (Solicitor)
SOLICITORS:
Abbott Tout
JUDGMENT:
IN THE LAND AND Matter No. 40103 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 7 December 1999
1. HIS HONOUR: I do not propose to deliver a judgment which canvasses all of the evidence. It is fresh in the Court's mind insofar as it has recently revisited all of the issues by listening to a number of experts over the last couple of days and has been able to refresh its memory by reference to the evidence that was given on the previous days.
2. The real issues which ultimately have to be resolved are broadly, whether orders already made in matter 40158 of 1998 by consent should be supplemented and, if the Court is persuaded that those orders, on the basis of the evidence which is now before the Court, should be supplemented by further orders in these proceedings 40103 of 1999, then whether or not those orders should contemplate a formal requirement for the retention of trees 1 and 2 which are identified clearly, inter alia at least, in the plan which is annexed to the Short Minutes of Orders made in 40158 of 1998 and in various plans tendered in these proceedings as part of the separate evidence which has continued following the making of the consent orders in the other matter.
3. There are peripheral issues which would flow from the retention of trees 1 and 2 and there are also coincidental issues which arise for determination insofar as the specification and execution of any plan of management is concerned. The Court does not need to re-iterate the nature of these proceedings. Let it be said nevertheless that there are serious questions of public policy involved in the circumstances of this case where the evidence discloses that six Tuckeroo trees were severely damaged, although the Court does not have the benefit of an explanation of the exact cause of that damage. The proceedings have been conducted on the basis that the respondent makes no admissions in regard to the cause of, or the responsibility for, that damage but nonetheless accepts that if there is to be any further remedial work beyond that already contemplated by the orders made in the other proceedings he, the first respondent, as owner of the land, will accept the responsibility for the implementation of those orders. I trust I do not do the respondent's case any injustice by explaining the position that he has taken in both proceedings but in particular in the completion of these 1999 proceedings commenced by the third party neighbour Mr Burrell.
4. So the starting point is that there was an existing stand of six Tuckeroo trees on the land. The evidence confirms what is generally acknowledged by all of the witnesses that the six Tuckeroo trees formed an important, significant part of the landscape in this locality. I was encouraged to take a view of the site in order to assist with my understanding of the evidence and the appreciation of the significance of the site and the trees which were formerly on it and the trees in the surrounding location. I resisted that application on the basis that I have heard full and comprehensive evidence from a range of expert, both practical and academic, witnesses and, in my opinion, the Court can be in no state of misunderstanding as to the significance that these trees had for the locality.
5. Notwithstanding the important questions of public policy, it is part of the Court's duty to also take into account the practicalities that are involved in seeing that any remedial works, if they are to be ordered by the Court, are undertaken and successfully accomplished as far as that is practicable. In that respect there has been considerable argument about whether making orders would interfere with the development potential for the land, whether that is a relevant consideration and whether or not the first respondent who owns the land upon which this damage has occurred is entitled to be given any consideration in that regard. Without having to decide which of all of those alternatives are preferred, and indeed all of them may be matters that need to be taken into account, it is inherent in what the Court does in seeking to rectify damage in circumstances such as these, that it addresses the practicalities and the prospect that it not impose restrictions that ultimately may work against the implementation of the scheme as proposed. Therefore the Court needs to take a practical approach in the application of its clear public duty if it is called upon to make any orders.
6. As I said, the trees are clearly important as a significant part of a remnant littoral rainforest. They did form an important part of the natural visual amenity of this part of Kurnell and there is no question that they have been destroyed contrary to the law.
7. The applicant, Mr Burrell, is, as I said, a neighbour who the Court has been told owns the property 272 Prince Charles Parade which abuts the subject land known as 274 Prince Charles Parade to the east. The land has a frontage to Prince Charles Parade to the north and has a considerable depth extending in a southerly direction. The trees might be described as being located in the front portion of the site and were close enough to the street boundary, as I said, to form an important part of the streetscape.
8. The Court is not required to find that the damage to the trees was caused by the first respondent. It accepts the admission that the destruction was undertaken contrary to law thereby entitling the Court to make declarations and orders consequent upon those breaches. The applicant has provided the Court with draft orders and they are in a form which merely declares what I have already referred to, that the six Tuckeroo trees were felled contrary to the provisions of the relevant planning instrument and that no consent was forthcoming from the council for the felling of the trees. The second declaration contains an alternative which has not been supported by the evidence and presumably is not pursued.
9. It is appropriate therefore, on the basis of the evidence before me, that the Court makes Declaration 1 and 2 but so far as 2 is concerned the Court makes the declaration in the terms of the first alternative only.
10. It is important to understand that trees 1 and 2, identified from the plans I mentioned a moment ago, were an integral part of the existing stands of trees in the vicinity although marginally set apart from the continuous line of Tuckeroo trees extending over several properties in an easterly direction.
11. The first respondent through its witnesses originally appeared to be pursuing a case to the effect that trees 1 and 2 were not worth retaining on the basis that they were not regenerating, that they were weak and that the prospects of saving them were not good. After considering the whole of the evidence, including the expert called by the first respondent, but particularly the expert witnesses called to support the case of the applicant and the council, the Court is led to the firm conclusion that neither tree 1 nor 2 can be considered as dead or unlikely to survive. That is not to say that either of them are most likely to survive because there are all sorts of reservations that must be held about the prospect of the survival of not only trees 1 and 2 but also trees 3, 4, 5 and 6 which are already the subject of orders in the other proceedings. On balance therefore, there is a reasonable expectation that trees 1 and 2 might regenerate from epicormic growth. It is nevertheless possible, as Mr Page told the Court, that there is a prospect the form of the regrowth of any of these trees will be, as he called it, an abomination. That is in the context of comparison to a tree allowed to develop in a natural way. As I understand that concern it relates to the proliferation of stems which are generated either from the trunks or from the roots of the existing trees, some of which will survive and others of which will fall away as the competition for survival increases.
12. However, on balance, the Court is satisfied that any orders that it makes should contemplate the prospect of trees 1 and 2 regenerating or at least allow the opportunity for that to occur. The evidence is that an opportunity has been taken to collect seedlings from the trees on the subject site and these seeds have been propagated in the council's nursery to the point where there are now 100 of these young trees available for replanting on the site. The indication is, and I accept the expert evidence in this regard, that even if the full 100 trees were planted, there is no expectation that they would all grow and that the prospect of successful transplanting, or however it is termed when it is taken out from a nursery, I think it has been referred to as planting, is in the order of one in ten.
13. The general concept of the scheme of management adopted for the purpose of the orders already made in proceedings 40158 of 1998 is that wide discretions are left in order to accommodate the exigencies of future circumstances. As many of the witnesses have said the contingencies in relation to the growing of trees, and other vegetation for that matter, are endless. All manner of impacts can occur which may impede, enhance or even destroy the growth of the trees and therefore there needs to be a significant degree of flexibility and the capacity for experts to exercise discretion in the course of the management program.
14. The applicant in these proceedings on the other hand has presented the Court with a plethora of orders which generally try to tie down the detail in a more concise form. I propose to approach the making of orders using the form of orders already made in the other proceedings as a guide for two reasons. One, they do leave the degree of flexibility that the Court believes is necessary and secondly, I think it is important for there to be elements of consistency between any scheme that might evolve as a consequence of hearing the further evidence in these proceedings and the scheme pursuant to the first orders.
15. There has been considerable conflict as to whether the contemplated provision of tree guards under the council's scheme is an approach which can be left to be determined from time to time or whether the areas to be quarantined to allow regrowth and other plantings to occur should be fenced off for a period sufficient to enable maturity to occur. I think it is generally accepted that the period I refer to is in the order of five years. The evidence is that by that time, if regeneration occurs or if new growth from new plantings occurs, the trees will be of a height, strength, maturity and health that will enable them to survive without constant maintenance and surveillance and indeed I anticipate that they would by then, be again subject to the control of any tree preservation order or other controls that apply in regard to trees that are of a mature status.
16. I am satisfied that it is in the interests of practicality and the success of the scheme that provision should be made for at least one point of access to allow vehicles to proceed from the street frontage to the rear of the site outside the area of sterilisation or quarantine. This much I think is recognised by the applicant's own case. It is more a question of the way in which this should be done.
17. I conclude from the evidence that the optimum area of circumference that should be allowed around the existing stumps to facilitate suckering and protection for the young growth is about three metres. That provision has already been made, as far as practical at least, in regard to trees 4, 5 and 6 in the sense that they are within an area which is set aside for supplementary planting referred to in the annexures to the orders made in 40158 of 1998. However the question of the protection of those trees is not designated except to the extent that appropriate tree guards shall be placed around the stumps and around any supplementary planting which occurs in the area coloured yellow in the plan annexed to the orders. The criteria for the individual tree guards has been the subject of some dispute and criticism by various experts. The Court prefers to place the matter beyond any doubt and to require that the areas which I will identify in a moment be fenced off from the balance of the land for a period of five years to enable the opportunity for either the remaining trunks to reproduce whatever it is that they can, or for new plantings to occur and for those to be nurtured in a managed way to maturity.
18. The evidence in these proceedings has assisted the Court to appreciate by reference to an exhibited plan which ultimately can be used to define the area in the north-east corner of the site by incorporating with the yellow area in the plan annexed to the original orders the area shaded red in Exhibit 1 and requiring that total area to be fenced separately. Having regard to the prospect of trees 1 and 2 being retained or regenerated and also the Court's finding that if those trees cannot be regenerated then attempts should be made to replace them, it is also appropriate that a further rectangle of land be protected by fencing taking into account the location of trees one and two.
19. I have had regard to the practicalities and in order to provide an adequate space between the two fenced areas to allow vehicular and other access to the rear of the site I propose to define the westernmost area as best as I can in that context. It shall be bounded by a line which extends in an east-west direction one metre east of tree 2 to intersect with a line which runs east-west three metres south of tree 1 and to intersect further with a line which runs east-west in a line which is three metres east of tree 2. The other boundary of the rectangle will be the western boundary of the site so that firstly you have a line which runs north-south a metre east of tree 2 and that joins up with two lines running east-west, one through the point three metres south of tree 12, the other through the point which is three metres east of tree 2. Although that is not providing the whole of the ultimate area for tree 2 it nevertheless does allow a prospect of growth in a westerly direction in an arc moving across to the south. I appreciate that the evidence is that there is some sign of suckering within the area that may be outside those lines but nevertheless I am satisfied that the prospect of providing the opportunity for tree 2 to regenerate will be there.
20. A further part of the orders will be that stumps 1 and 2 are retained to allow for regrowth. I accept that the whole of the areas should be fenced and it should be designed so that it is animal proof and the evidence before me suggests that a wire mesh fence 1.8 metres high will serve that purpose. I propose to formulate a further order specific to these proceedings to the effect of par 4 of annexure A in the early proceedings regarding supplementary planting in the new area without including the reference to any species except the Tuckeroo tree. In that respect I am not interfering with the orders already made in the council's proceedings in respect of the yellow area. The difference will be that the areas must now be fenced.
21. The reason that I recognise the other species and make no orders to interfere with the prospect that they will be used in the yellow area is because of the evidence I have heard about the prevailing salt laden winds and the prospect of the summer sun impacting upon the young regrowth in trees 3, 4, 5 and 6. That will afford an opportunity for those regrowing plants to be allowed some protection. I am also prepared to extend par 5 of annexure A in the other proceedings in exactly the same terms except, of course, that it should be clear that a reference to the applicant in those earlier orders is now a reference to the council which is in fact the second respondent. That will provide for the management for five years. As I have said, that fence is only to be maintained for five years for the reasons that I have explained.
22. I also propose to include in the management scheme par 4 of annexure A of the draft orders provided by the applicant in 40103 of 1999 insofar as it relates to the fenced area around trees 1 and 2. By proceeding in that way the Court has deliberately left open the future management to be settled between the arborist referred to in the plan of management and the council officers. I bear in mind and it is the evidence, that the arborist is likely to be Mr Page. I have seen Mr Page in the witness box and I have no reason to find that his appointment, without fixing it, would be inappropriate. The applicant in these proceedings has suggested that he should have some say in the concurrence as to the appointment of the arborist. I think that may result in conflict of interest which it is unnecessary to generate.
23. I think the other matters that are raised, in what I might describe as a more prolix fashion, in the draft orders are covered by the reasons that I have already given. The Court will make formal orders in the terms that I have attempted to outline in this temporary fashion. If what I have said in regard to the terms of the orders creates any element of uncertainty in the mind of either party then it might be appropriate to address that now or alternatively the Court will draft its own orders and submit them for consideration with the opportunity for the parties to apply within seven days of seeing those orders. The latter might be the more appropriate way of doing it but I am in the parties' hands.
24. HOWEN: That's supported by the applicants.
25. STICHTER: Your Honour I'm in some confusion. Your Honour said that the actual plan of management will be conducted by the experts. I take that to mean that what goes on within the fences is left in the hands of the experts.
26. HIS HONOUR: That's right, those experts being--
27. STICHTER: Mr Page and council's expert.
28. HIS HONOUR: Well whoever it is that is the qualified arborist satisfactory to the council.
29. STICHTER: Before the trees were cut down there were six Tuckeroos. The evidence from Mr Hartley is that there are shoots all over the place. Do the arborist and the council and so on determine which shoots are culled?
30. HIS HONOUR: Yes. I'm not going to try and decide what's cullable, what's maintainable for the reasons that the experts on both sides gave in evidence.
31. STICHTER: I'm just wondering whether the experts need some criteria to assess it by as well. In other words is the aim to preserve everything within those fences if possible or to preserve six Tuckeroo trees? Do we have more than we started with?
32. HIS HONOUR: What effectively happens Mr Stichter is that I've set aside the area which I perceive to have been encompassed by the existing six Tuckeroo trees. I mean obviously one can't by survey generate just exactly what that area was. What I've attempted to do is say the area in the west and one sees from the photographs that there was a clump over there of two trees and the other clump was here. What I've attempted to do is fence off that area to deal with that clump and fence off that area to deal with that clump.
33. STICHTER: I quite understand that your Honour. The question is what happens within the fenced areas.
34. HIS HONOUR: Short of there being some bolt of lightning from your side of the bar table that demonstrates to me that some specificity can be brought into it, you're already in a situation in the yellow area where it's left to the discretion of the experts to do what's got to be done. Why should I change it for the other one?
35. STICHTER: I appreciate that your Honour. I'd say you'll have to apply.
36. HIS HONOUR: I don't know whether they have to apply, I'm hoping these orders are final. Perhaps self executing and they expire in five years.
37. STICHTER: Perhaps Mr Page could have a word with Mr Rogers and if the experts have any problems they could--
38. HIS HONOUR: If there's any doubt - as Mr Howen has said, it's acceptable to the applicant for me to draft the orders and then give the opportunity for either party to apply and if neither party applies within say seven days of me publishing the draft orders then I'll make them. That's probably a practical way to go. It's not an easy matter to decide here and now at 4.45pm but I'm trying to leave the parties in no doubt as to what the outcome is and in a word what I've done is set aside the area as best I can round trees 1 and 2, I've extended the area around trees 3, 4, 5 and 6 to encompass the three metres and in order to avoid any arguments further about whether a tree guard is a tree guard or it isn't, fence it and it lasts for five years. That's the policy I've adopted.
39. STICHTER: When your Honour considers some of the detailed aspects in the next few days may I just remind the Court of evidence that it may need to take into account to the effect that the applicant's experts said that the suckers should be left to grow and they'll sort themselves out. However the applicant's experts also conceded some measure of flexibility was required but there was a substratum of that opinion that they'll sort themselves out and there may be multiple stems for some time but they'll sort themselves out.
40. HIS HONOUR: I think I've taken that into account in the reasons I've given. I'm not professing to be an arboreal adviser nor is the Court going to undertake that role. The Court is going to leave that role to the discretion of statutory authority in conjunction with the expert who is retained by the owner of the land. Ultimately the council will decide.
41. HOWEN: Your Honour I'll look at those with Mr Burrell in due course when the orders are made available.
42. HIS HONOUR: The essence of it is that it's going to go under council management but Mr Stichter's client has got the right to provide some input into that process as the owner of the land and the person paying the bills.
43. HOWEN: Would your Honour kindly also just allow in that liberty for the applicant to bring the issue of costs before the Court?
44. HIS HONOUR: It may be convenient that you bring them all back together.
45. HOWEN: Yes I agree.
46. HIS HONOUR: Once somebody applies to address that will stop me from making the orders.
47. HOWEN: So you'll set a time period within which their liberty will be exercised--
48. HIS HONOUR: I will publish the draft orders and the orders will simply be each party is given liberty to apply within seven days to address the court in relation to the draft orders otherwise the orders will be made in the form of the draft.
49. STICHTER: I think I should ask your Honour to change them substantially allowing trees 1 and 2 to be removed.
50. HIS HONOUR: We're only talking about detail Mr Stichter, there's no free kicks. I've made my finding, all I'm doing now is framing orders.
51. STICHTER: I appreciate that your Honour.
52. HIS HONOUR: Let's make this clear. These orders are going to reflect my findings. We're only talking about the detail and any practical problems. It's not a question of trying to re-canvass the issues.
53. HOWEN: Yes I accept that.
54. HIS HONOUR: I'm saying it for the benefit of Mr Stichter.
55. STICHTER: I'm being facetious your Honour.
56. HOWEN: But it also applies to me too. Your Honour Mr Burrell intends to order a transcript of just your reasons because we can't write fast enough. I would just simply ask that every effort be made--
57. HIS HONOUR: It will give me a chance to edit it.
58. HOWEN: That's what I was going to say, it has to come through your hands anyway. If any reasonable attempt could be made to edit it as soon as possible that would be greatly appreciated.
59. HIS HONOUR: You're not asking that at the most convenient time of the year but what you will get is the orders within the next couple of days--
60. HOWEN: Well we'll do it in due course when we receive the orders--
61. HIS HONOUR: And then you can deal with the question of liberty by merely making an application and it no doubt won't be dealt with this year but at least we've got rid of the evidence.
62. HOWEN: Yes, I appreciate that.
63. HIS HONOUR: And it's not necessary to recall it all in February or March. That's the prospect that I've avoided I hope.
64. STICHTER: Might I ask one other item your Honour. If the parties are happy with the orders would your Honour accept the issue of submissions to be done by way of written submissions on the issue of costs?
65. HIS HONOUR: Yes, I'm happy to do that.
66. STICHTER: I'm just thinking, as your Honour said this time of the year and for three parties to have to find time to turn up again plus your Honour's time, if all that remains is the issue of costs, perhaps written submissions might be most appropriate.
67. HOWEN: In point form.
68. STICHTER: Written submissions can sometimes end up costing everybody more but then a point form outline is always helpful for everyone including the bench but I would still appreciate the opportunity for a brief address if there's--
69. HIS HONOUR: You might even agree on costs.
70. STICHTER: Every effort should be made but I wouldn't hold that a high prospect but yes, the usual contact will take place.
72. STICHTER: Yes your Honour.71. HIS HONOUR: Anyway it can be listed for mention between now and Christmas. That might be the smart idea. Why don't I do this, I'll publish the draft orders and list the matter for mention and then you've got to come. Is that satisfactory Mr Stichter?
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