City of Canada Bay Council v Frank Edward Bird; City of Canada Bay Council v Michael John Christopher
[2003] NSWLEC 9
•02/07/2003
>
Reported Decision: (2003) 124 LGERA 303
Land and Environment Court
of New South Wales
CITATION: City of Canada Bay Council v Frank Edward Bird; City of Canada Bay Council v Michael John Christopher [2003] NSWLEC 9 revised - 24/06/2003 PARTIES: PROSECUTOR
City of Canada Bay CouncilDEFENDANT
Frank Edward BirdPROSECUTOR
DEFENDANT
City of Canada Bay Council
Michael John ChristopherFILE NUMBER(S): 50136 of 2001; 50137 of 2001 CORAM: Cowdroy J KEY ISSUES: Environmental Offences :- honest and reasonable mistake of fact- trees lopped without consent - tree preservation order
LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 125, s 26, s 33(1)
Environmental Planning and Assessment Model Provisions 1980
Evidence Act 1995, s 141
Drummoyne Local Environment Plan 1986
Drummoyne Council Tree Preservation Order 1986CASES CITED: ADI Ltd v Environment Protection Authority (2001) 118 A Crim R 335;
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249;
Director of Public Prosecutions v United Telecasters Sydney Ltd (1989 - 1990) 168 CLR 594 ;
Dragan Radic (2001) 122 A Crim R 70 (CCA) ;
Environmental Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1;
Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361 ;
He Kaw Teh v The Queen (1985) 157 CLR 523;
Hunter Water Board v State Rail Authority of NSW [No 1] (1992) 75 LGRA 15 ;
Power v Penthill House Pty Ltd and Ors (1993) 80 LGERA 247 ;
Proudman v Dayman (1941) 67 CLR 536;
State Rail Authority of NSW v Hunter Water Board (1992) 8 NSWLR 721 (CCA)DATES OF HEARING: 22/7/2002
23/7/2002
24/7/2002
6/12/2002DATE OF JUDGMENT:
02/07/2003LEGAL REPRESENTATIVES:
50136 OF 2001PROSECUTOR
Mr T Howard (Barrister)SOLICITORS
Abbott ToutDEFENDANT
Mr J Webster SCSOLICITORS
Richard Booker50137 OF 2001
PROSECUTOR
Mr T Howard (Barrister)SOLICITORS
Abbott ToutDEFENDANT
SOLICITORS
Mr I Hemmings (Barrister)
Loder & Loder
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
50136 of 2001/ 50137 of 2001
7 February 2003COWDROY J
- Prosecutor
- Defendant
- Prosecutor
- Defendant
The Charges
1 The City of Canada Bay Council (“the prosecutor”) charges that on or about the 26 June 2001 at 26 Walton Crescent, Abbotsford (“No. 26” or “the site”), each of the defendants committed a breach of s 125(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The prosecutor alleges that without consent each defendant lopped trees that were forbidden to be lopped by the Drummoyne Council Tree Preservation Order (“the TPO”) made pursuant to the Drummoyne Local Environmental Plan 1986 (“the LEP”). The particulars identify the trees as two mature Melaleuca quinquenervia (Broad leaved paperbark) being approximately 10 metres in height. Such trees are hereafter referred to as “the trees”. The trees were adjacent to the boundary of the adjoining property at 28 Walton Crescent (“No. 28”). Both No. 26 and No. 28 comprise residential home unit buildings having a garden frontage to Abbotsford Bay being part of Sydney Harbour. The trees were located between the buildings and waterfront.
2 The defendants have each pleaded not guilty to the charges and with the consent of the defendants the charges have been heard together. A statement of agreed facts has been filed in both proceedings.
3 By proclamation published in the New South Wales Government Gazette No. 127 dated 29 September 2000 the areas of Concord and Drummoyne were amalgamated into a new local government area having the name Canada Bay. From that date a new council known as the City of Canada Bay Council has administered such area. In the same proclamation it was declared, inter alia, that any order made by a former council was to continue to have effect as if made by the City of Canada Bay Council.
The Tree Preservation Order
4 The TPO was adopted by resolution of the Drummoyne Council on 27 October 1998. It was published in the Gazette on 13 November 1998.
5 The TPO contains comprehensive provisions concerning the preservation of trees. Clause 5 of the TPO provides:
Except as otherwise provided in this order, a person shall not prune, remove, ring bark, cut down, top, lop, remove, injure or wilfully destroy any tree except with the consent of Council under this order and in accordance with any consent and any conditions thereof.(5) Prohibition
6 A defence to such a charge is provided in cl 7 of the TPO which relevantly states as follows:-
The owner of the land being private property or person with the consent in writing of that owner may without the consent of Council on private property only under this order on that land carry out the work of pruning, removal, ring barking, cutting down, topping, lopping or wilfully destroying a tree where the tree:(7) Exemptions
(a) Is dead (but dead tree habitat potential should be considered), or the removal of dead branches;
7 The TPO contains a definition of “dead tree” as follows:-
- “Dead Tree” means a tree which is no longer capable of performing any of the following processes or is exhibiting any of the following symptoms;
photosynthesis via its foliage crown (as indicated by the presence of moist, green or other coloured leaves);Processes
osmosis (the ability of the plant to hold moisture in its cells);
epicomic [sic] shoots (the production of new shoots as a response to stress, generated from buds under the bark or from a lignotuber – an underground stem);
permanent leaf loss in both deciduous and evergreen plants;Symptoms
permanent wilting (the loss of turgidity which is marked by drying out of stems, leaves and roots)
shedding of the epidermis (bark dries out and peels off to the beginning of the sapwood – new wood)
The Model Provisions
8 Clause 6 of the LEP adopts most of the provisions of the Environmental Planning and Assessment Model Provisions 1980 (“the Model Provisions”) including cl 8 thereof which pertains to the preservation of trees.
9 Clause 8(1) of the Model Provisions refers to the circumstances in which a council may claim it expedient to adopt a tree preservation order. Clause 8(4) refers to the need to publish the order so made in the Government Gazette.
10 Clause 8(5) of the Model Provisions provides that a person who contravenes or causes or permits to be contravened a tree preservation order shall be guilty of an offence.
11 Clause 8(6) includes defences to a charge brought under the clause as follows:-
- 8(6) It is a sufficient defence to proceedings under this clause relating to the ring-barking, cutting down, topping, lopping, removal, injury or wilful destruction to prove:-
(a) that the tree was dying or dead or had become dangerous;
The Def e nces
12 The defendants neither admit nor deny that they cut down the trees. However, the defendants claim that they are entitled to rely upon the defence provided by cl 8(6) of the Model Provisions. If applicable such defence would not require the defendants to prove that they had the consent in writing of the owner of the land on which the trees were located, nor would they be required to prove that the trees were dead.
The Prosecutor’s Evidence
13 The prosecutor relied upon both lay and expert evidence which is summarised as follows.
Heather Barnes
14 Ms Heather Barnes an Environmental Manager for the New South Wales Fire Brigade is a resident in the building at No. 26 (“the building”). Ms Barnes holds the qualifications of Bachelor of Science (Geology/Biology) and the degree of Master of Environmental Studies.
15 From January 2001 Ms Barnes noticed that foliage on the tree closest to the building (hereafter referred to as “T2”) had commenced to turn from green to brown. Ms Barnes had closely inspected T2 and the tree closer to the waterfront (“T1”) and noticed that a hole had been placed in the trunk of each the trees. Ms Barnes testified that T1 had one brown branch which constituted about 10 per cent and that “the whole of the rest of the tree was green”. In a letter to the General Manager of the City of Canada Bay Council dated 28 June 2001, Ms Barnes recorded the condition of the trees as follows:
- It appears an unsuccessful attempt had been made to poison these trees some few months previously; drill holes and plugs were discovered when trying to determine the reason for browning on some branches. As at the 26th June, one was displaying substantially browned leaves, but green regrowth was occurring at the crown, the other tree had one browned branch only but was otherwise healthy.
16 From April 2001 she noticed that new green growth was starting to sprout from T2 above that portion of brown and the green portion seemed to be increasing towards the crown. She testified:
- The tree number two still had green sections to it, not a great amount, I would suggest 5 to 10 per cent of the tree was still green, and that was as about February. I noticed during the year that that green seemed to increase slightly. Now I couldn’t see where it was coming from particularly because the trees were so high, they were about 35 foot high, and that was up quite high in the tree, and I didn’t have access to it, but it seemed to me that the tree was recovering.
17 On the morning of 26 June 2001 at approximately 7.30 am she heard the noise of chain saws. She observed the trees in the grounds of No. 26 were being cut down and had a conversation with a man who was carrying branches. She asked him whether he had a permit. In response she was referred to a man who was holding a chainsaw and was standing in No. 26 who was the defendant, Mr Michael Christopher. Another man namely the defendant, Mr Frank Edward Bird, was standing in the garden of No. 28.
18 Ms Barnes inquired of Mr Bird whether he had permission to cut down the trees. He replied “It’s okay I have permission from Ian. He is on the body corporate of No. 26.” Mr Ian Richardson is chairman of the Body Corporate of No. 26. When she asked whether he had a permit from the council he responded on two occasions: “Don’t worry about it. I know someone on the Council”. Ms Barnes requested the defendants to desist. Ms Barnes said: “I have spoken to the ranger. He said you have to stop, you have no permit. There is a large fine for removing trees illegally”. In response Mr Bird demanded to know whether she was an owner. When informed that she was an occupant, but not an owner, Mr Bird said that work would stop only if she was prepared to pay for the work. Ms Barnes immediately contacted the prosecutor and arranged for an officer to attend on site.
Gregory Shane Martin
19 Mr Martin is the prosecutor’s law enforcement officer who attended the site on the 26 June 2001 at about 9.20 am in response to the request from Ms Barnes. Having observed a truck and grinder parked in Walton Crescent he spoke to Ms Barnes and then walked to the rear of No 28 where he observed a male person carrying branches to the footpath. He observed another male person who was standing on a branch operating a chainsaw cutting green branches of T1 then placing them on the ground. Mr Martin saw that the stalk, main trunk and branches of such tree were green. Two other persons were watching, one who identified himself as Mr Frank Bird. A conversation ensued in which Mr Martin asked whether Mr Bird had permission to remove the trees. Mr Bird responded:
- No, we don’t need it because as you can see the trees are dead so both Body Corporates decided to have them removed for the best interests of the people using the property for safety reasons. They were leaving a mess all over the place.
20 Mr Bird produced a permit which related to a tree on the street frontage and which was irrelevant to the trees which were being cut down, and stated that he had permission to remove a tree from the “front of the property from Peter Richards”.
21 Mr Martin then spoke to Mr Christopher and asked whether he had permission to remove the trees. Mr Christopher responded saying that he had permission from “those two gentlemen over there”, indicating Mr Bird and another man. When further pressed he said:-
- No, I don’t need permission to remove dead trees.
22 Mr Martin responded:-
- Sir, I am not a tree doctor but those trees you cut down don’t look dead to me. I lived in a forest for 35 years. Those trees are still alive.
23 Mr Martin recalled that when he arrived one of the trees (T2) had been cut down to its stump and one (T1) was still partly standing.
Christopher Sidney Johnson
24 Mr Johnson, an academic, has resided at unit 15 No. 26 for approximately 5 years. He had a clear view of the trees from the two levels of his residence. His father had been the director of the Royal Botanical Gardens in Sydney between 1973 and 1976 and as a result Mr Johnson has possessed a life long interest in botany and especially trees.
25 Mr Johnson said that prior to early 2001 the trees had always been green and healthy specimens. In approximately February or March 2001 he noticed that T2 “was starting to turn a brown colour”. Mr Johnson examined the tree and found that there was a hole in the trunk of T2. He was concerned for the health of both trees and monitored the state of foliage of the trees by making daily observations. Such trees provided shade to the common garden space, and wind protection for the common garden area.
26 Between February or March 2001 and the end of June 2001, Mr Johnson noticed that no further foliage on T2 turned brown. He testified that 35 per cent to 40 per cent of this tree had turned brown but that the top portion remained green. He assessed, in summary, that one half of the tree was brown up to three quarters of its height and that there was green foliage on the other half of the sides of the tree and on the crown. During his evidence he gave a three-dimensional demonstration of the extent of the green and brown portions. He said:-
- “…the top of the crown and the side facing the water was still - seemed to be still fairly healthy.”
Mr Johnson’s affidavit does not refer to T1, and in evidence he said that T1 had no brown leaves.
27 On the morning of 26 June 2001 he heard the noise of a chainsaw and went outside to the trees where he spoke to Mr Bird. A conversation took place in which Mr Johnson said to Mr Bird:
“What do you think you are doing? This is not even your property.”
He said:
“I am the owner of that unit on this property and I have permission from your body corporate to remove these trees because they are dead.
I said:
“That is totally incorrect. The one closest to the water was in good health and the other would have recovered because one third of its canopy was still healthy. I have been watching these trees closely and neither of the trees was dying.”
He said:
“They were dying and I have permission.”
I said:
“Who from?”
“From Ian Richardson.”He said:
28 Mr Johnson also spoke to Mr Christopher and said:
- What do you think you are doing? You need a permit.
Mr Bird responded saying:
- The trees were dead and I have permission from the body corporate.
29 Mr Johnson’s evidence is confusing. However it is clear that he recalls that T2 had a green crown, and that T1 had no brown leaves.
John Phillip Langley
30 Mr Langley, a school teacher, testified that he had resided at unit 2 No. 26 since 1996. Mr Langley noticed that after new year 2001 both trees were turning brown. By March 2001 he observed that one of the trees had many brown leaves and that the other had a noticeable amount of green leaves “right at the top of the tree”. He inspected the tree trunks in about February 2001 and noticed cavities in the trunks that appeared to have been cut with an axe. He deposed that the trees “looked damaged” but believed that they might recover. In cross-examination he said his recollection was that “the tree closest to the water” (T1) was entirely brown, but the tree closest to the building (T2) was “mostly brown” but had “a small amount of green” which was located near the top of the tree. His observations were made whilst standing under the trees. From his unit he could only see “the tip of the trees”.
Peter Anthony Richards
31 Mr Richards is a landscape officer employed by the prosecutor. Mr Richards has qualifications comprising an Associate Diploma in Science (Park Management) a Horticultural Certificate and a Certificate in Arboriculture. Mr Richards has had 15 years experience in landscaping for local government and amenity arboriculture specialising in trees in the urban environment.
32 Mr Richards examined the photographs which are attached to the affidavit of Gregory Shane Martin sworn on November 2001. From those photographs Mr Richards observed that the foliage showed moist green leaves which indicated that the trees had the ability to hold moisture in their cells. He testified that he would not expect to see any active foliage or shoot production in the month of June since trees generally did not generate such growth during this period.
33 Mr Richards was cross examined extensively concerning a meeting which took place after these proceedings had been instituted at the Mayor’s office between the Mayor, Mr Bird and others concerning the trees which had been arranged at Mr Bird’s request. It was put to Mr Richards that at such meeting it was agreed that the trees were dead. Mr Richards denied such suggestion. In re-examination a file note made by him at or immediately following that meeting and dated 13 August 2001 was tendered, which records:-
It was not determined as to whether branches were dead or alive.
34 Such note also records the following:
- A letter signed by the Body corporate secretary [of No. 26] has been received which indicated that they objected to actions taken by Mr Bird.
Craig Bradley Martin
35 Mr Martin is an expert consulting arborist. His qualifications include Arboriculture Techniques Certificate I, Ecology and Environmental Issues I, Certificate of Horticulture (Distinction) and Diploma of Horticulture (Arboriculture). Mr Martin is consulting arborist to Urban Forestry Services of Australia, Tree Management and Consulting Arborists and has had 18 years experience in Arboriculture including an engagement as Leading Hand Arborist with the Royal Botanical Gardens, Sydney. Mr Martin provided a statement of evidence based upon a site visit made on 23 February 2002, the photographs and sworn statement of Ms Barnes, the observations of Mr Langley, and upon his extensive experience with the Melaleuca quinquenervia.
36 Mr Martin concluded that neither tree was dead at the time of its removal. He opined that both trees were capable of carrying out the process of photosynthesis, osmosis and the production of epicormic shoots. Neither tree showed symptoms of permanent leaf loss. T1 did not show signs of permanent wilting or shedding of the epidermis as defined in the TPO. T2 did not show symptoms of shedding of the epidermis but a portion of this tree may have exhibited symptoms of permanent wilting. In this respect Mr Martin said:
... however the presence epicormic shoots suggests the tree was recovering and remedial pruning and improvement of the trees condition was the most appropriate course of action, as opposed to total removal of the tree.
37 In his oral evidence, Mr Martin explained that “partial sections of the tree may have exhibited permanent wilting, or loss of turgidity, however the presence of epicormic shoots indicates the trees had not permanently wilted”.
38 As to T1, Mr Martin expressed his opinion concerning the state of the trees as follows:
- … if I make the assumption that that tree had green foliage then in processes the tree was capable of performing photosynthesis, and also it would have been capable of performing osmosis. If the tree had green foliage on it it [sic] would have been capable of producing epicormic shoots. So, in my opinion, it was capable of all those three processes.
39 Mr Martin explained that “epicormic shoots” are those “that arrive in response to stress …”. When asked whether T1 was dying, he replied:
- I don’t think that there’d be any reason to believe that that tree was dying based on the assumption that the tree had green foliage.
40 Mr Martin also said:
- The crown that’s evidence on the ground, if we assume that that comes from tree 1, looks to me to be characteristic of a crown on a tree that’s in fair health.
41 He said in relation to T2:
- In general, there would be either further testing done or a period of time elapse to determine whether or not that tree was dying. It’s a possibility that that tree was dying because of the remaining one-third of the crown, the green foliage, there’s also a possibility that the tree would recover.
42 Mr Martin viewed the photographs of the stumps of the trees and testified:-
- It’s showing what appears to be a moist surface. The front cut is quite steep, and the sawdust is still attached to that surface, and that’s what I base my assumption on, the fact that that’s a moist live surface, so that doesn’t contain any evidence, in my opinion, that shows the trees are dying
43 In cross-examination Mr Martin acknowledged that if a tree was entirely brown and had no evidence of epicormic shoots the tree may give the impression that it was dead. However, he said that whilst a branch of a tree may appear to be dead it is impossible to determine whether the branch or the tree is in fact dead without paring the bark with a knife to see whether the inner bark was dry.
44 Mr Martin considered that the presence of green leaves on a tree showed that it was not dead. He acknowledged the possibility that such a tree might be dying. Mr Martin was shown a photograph of the lateral branch of T1 (being photograph No. 11 of several photographs comprising an annexure to the affidavit of Gregory Shane Martin sworn 28 November 2001). He opined that the section of the tree was in fair health which indicated that the tree from which the branch had been removed was not dying.
45 Mr Martin referred to the presence of epicormic shoots on tree T2 and said:
- Because, for instance, where Heather Barnes observed that foliage had started to turn brown, then shoots appeared from a point above that foliage that had previously been turning brown, that indicated to me that they were epicormic shoots arising as a result of the tree being under stress.
Mr Martin was cross examined upon the issue of green leaves, it being suggested that the green leaves were no more than the residue of old growth. However he maintained that the green shoots observed in T2 was not old growth but epicormic shoots indicative of new growth as a result of stress to the tree.
- Defence of Frank Bird
46 Mr Bird testified that he purchased his home unit at No. 28 in March 2001. Extensive landscaping was undertaken before he began occupying the unit on 18 May 2001. Shortly thereafter he became a member of the Body Corporate of No. 28 and became aware of complaints concerning dead leaves and twigs falling on the lawn and into the pool of No. 28. Mr Bird deposed that he spoke to Mr Ian Richardson who was a member of the Body Corporate of No. 26 and offered to remove the trees at his own expense. Mr Bird testified that Mr Richardson agreed. As a consequence he arranged for Mr Christopher to remove the trees.
47 On the morning of 26 June 2001 Mr Bird met Mr Christopher and the cutting down of the trees commenced by Mr Christopher and continued although interrupted initially by Ms Barnes, and Mr Johnson and thereafter by the council officer, Mr Gregory Martin. Mr Bird acknowledged that he was requested to stop these operations, but declined to do so as he considered the trees to be dead. Mr Bird repeatedly stated in his evidence that “both trees as far as I can [sic] [am] concerned were completely dead”.
48 Mr Bird said that there had been a meeting of the Body Corporate (of No. 26) at which it was agreed to remove the trees. He denied that he had said that the trees were obstructing his view. He said he considered the trees were dangerous.
49 During his cross-examination Mr Bird conceded T1 was not completely dead. The following question and answer is recorded:
- Q. Are you suggesting Mr Bird that the tree which had that branch attached to it prior to Mr Christopher lopping it was dead?
A. Not completely.
50 As to Ms Barnes’ request that he cease cutting the trees he said that he asked her whether she was an owner. When he learnt that she was not an owner he acknowledged that he would stop provided that she would pay for the work. Since Ms Barnes declined any such offer, the work continued. He denied saying “I know someone on the council”. By the time the council officer Mr Gregory Martin attended on site the trees had already been cut down and Mr Christopher was engaged in cutting up the branches.
51 Mr Bird referred to the meeting that was subsequently arranged at his request with the local mayor at which Mr Peter Richards (the prosecutor’s landscape officer) was present. Mr Bird said in oral evidence:-
Mr Richards agreed at the meeting that the trees were dead. We all did.
Ernest Mervin McQuillan
52 Mr McQuillan, a semi-retired photographer, resides at unit 5 No. 28. At about 7.30 am 26 June 2001 he observed the cutting down of the trees. He testified that the trees were flourishing with green foliage in the year 2000 but that from January 2001 they had turned completely brown. He assumed they were dead or dying and appeared to him to be dead. He did not observe any green leaves on either tree and did not notice any branch with green leaves. When shown photograph No. 11 which depicts the branch with green foliage Mr McQuillan acknowledged that it could have formed part of the tree.
Paul Gregory Carmody
53 Mr Carmody holds a tree surgery certificate and an Arboriculture Certificate I and II. He has been engaged in the business of trimming and removing trees for the past 20 years. In early 2001 Mr Carmody drove along Walton Crescent, Abbotsford. Whilst driving past No. 26 in his truck he observed the tops of the trees and saw dead foliage. On the day he gave evidence, namely 23 July 2002, he inspected the stumps of the trees and he also inspected the photographs.
54 From the photographic evidence which was provided to him, Mr Carmody opined that if the trees had been green but commenced to brown in early February and remained brown until early June the tree had “had it”. He testified that all of the foliage he saw was brown and dead. Even if there had been a branch of green foliage he considered that such tree was dying.
55 From photographs he was unable to detect any epicormic growth on either tree and believed that this was the result of the trees having insufficient strength to survive. If the trees were alive he would have expected to see epicormic growth on their trunks. He believed, from the photographs, that the green growth was not epicormic, but old green foliage.
56 In cross-examination Mr Carmody agreed that he could not see the entirety of the trees while driving past the site. He acknowledged that the photographs of the stumps taken immediately after they were cut down appeared to be moist and healthy with no sign of decay or disease. However he did not agree that the condition of the stumps necessarily indicated that the trees were healthy.
57 In cross examination Mr Carmody conceded that one tree was dying and said:-
- If there’s one with one green branch on it, it was dying, if there’s one with no green branches on it, it was dead, it wasn’t conducting photosynthesis, it was dead.
Defence of Michael John Christopher
58 Mr Christopher was the principal of MJC Tree Services which was engaged in the business of providing tree services including lopping and removal of trees. He had visited the site approximately a fortnight before the day of the offence and gave a quotation to Mr Bird. On 26 June 2001 Mr Christopher cut down the trees at the request of Mr Bird.
59 Mr Christopher testified that both trees were dead. He said that if the trees had been living he would have expected to see epicormic growth but that none existed on the trees. He denied the suggestion that he had poisoned the trees. He did not undertake a knife test of the bark of the trees because he formed the opinion that “both crowns on both trees were dead”.
60 Mr Christopher denied that any green leaves existed in the crown of T1. He said that the crown of T1 was dead and wilting and the lower limbs were turgid. He testified:-
Well, there was no green leaves of the tree on tree number one.
However, without correcting such statement, he later testified that there was one green branch on T1. He described it as follows:-
That was on the left of the tree and it was the lowest limb on that tree.
61 Evidence was called by the defendants concerning the branches which constituted “the crown” of a tree. Mr Christopher understood that the crown of a tree included all limbs above the lower limbs. In respect of T1 the lowest limb was green. He defined the lowest limb as the limb which joined the trunk at the lowest level. Such branch was not, in his opinion, included in the definition of “crown” of a tree. Accordingly, even though such branch had green foliage, he did not consider it to be relevant for the purpose of determining whether the tree was dead.
62 Mr Christopher described T2 as woody with no brown foliage. He said there was no wilting of the leaves at all as they had all fallen off. When shown photograph No. 5 and photograph No. 11 (annexed to the affidavit of Gregory Shane Martin sworn 28 November 2001) which showed a large branch with green foliage. Mr Christopher acknowledged that there could have been moisture in the co-dominant stem and said that a tree holds moisture “all the time”. He said that the conclusion could not however be drawn that the tree was necessarily alive.
63 Mr Christopher was shown photographs No. 9 and No. 10 which depicted green growth which the prosecutor’s expert Mr Martin had identified as new growth. In Mr Christopher’s opinion such growth was original and did not comprise new growth or new shoots. He denied the presence of any epicormic growth.
64 Mr Christopher acknowledged that the browning of the trees was consistent with “a number of factors”. He did not see any poisoning holes, and formed the view that the live green foliage was insufficient to provide growth for the tree. By reference to photographs 5 and 7 Mr Christopher opined that there was not enough green foliage for osmosis.
65 Mr Christopher acknowledged that a tree having green leaves is capable of photosynthesis and that photograph No. 11 showed that the crown of the tree was not totally dead.
66 Mr Christopher testified that Mr Bird had informed him that the strata management had agreed upon the removal of the trees but he did not see, nor ask to see, the consent.
Documentary Evidence
67 The prosecutor tendered a bundle of agreed documents (Exhibit B). One such document contains the minutes of the executive meeting of the Body Corporate for No. 26 held on 29 May 2001. One item of business concerned the request from Mr Bird that the Body Corporate remove a Banksia tree and its replacement with a “straight tree” of similar variety at his own expense, for the recorded reason that “the tree interrupts his view”. The minutes also record that Mr Bird “may be willing to have the two poisoned Paperbarks removed at the same time (from 26 Walton Cres.) and at his expense.” After discussion the minutes record that the matter was unresolved.
Onus of Proof
68 The onus rests upon the prosecution to prove that the trees were cut down by the actions of each of the defendants. The standard of proof is proof beyond reasonable doubt: s141(1) Evidence Act 1995. Offences under s125 of the Act are offences of strict liability: see Stein J in Power v Penthill House Pty Ltd and Ors (1993) 80 LGERA 247 at 253.
69 The evidence establishes beyond reasonable doubt that Mr Christopher lopped trees which were forbidden to be lopped without consent as required by the TPO. Mr Bird acknowledges his participation by retaining Mr Christopher and by being actively involved in the removal of the trees. Mr Christopher was an independent contractor and was acting under the control and direction of Mr Bird. The Court is satisfied beyond a reasonable doubt that Mr Bird is vicariously liable: see Stein J in Penthill House at 254; cf Environmental Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1. There is no doubt that the prosecution has established the essential elements of the offence (see Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361 at pp 364 – 365) and accordingly the question now for determination is whether a defence is established.
Classification of Offence
70 The offence is stated in the summonses to be a breach of the TPO being an order made pursuant to the LEP. By s 26 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) a local environment plan may make provision for protection of trees. The particulars contained in the summons identify the TPO by the date of its adoption by resolution of the Drummoyne Council and the date of the gazettal. The Model Provisions may be adopted by a local authority wholly or partially by an environmental planning instrument as provided by s 33(1) of the EP&A Act.
71 It is apparent from the text of s 33(1) of the EP&A Act that the provisions of an environmental planning instrument may make provisions other than those contained in the Model Provisions, and may revoke or vary any such provisions. It is not a requirement of the Model Provisions that the whole of cl 8 thereof be implemented. Further, clause 8 of the Model Provisions does not purport to be a comprehensive regulation relating to tree preservation. The sub-clauses refer to matters which may, or may not, be adopted by a local authority. No penalties are provided for any breach, indicating that the ultimate regulation for any tree preservation order resides in the discretion of the individual local authority.
72 In this instance, Drummoyne Council, while using the facultative provisions contained in cl 8 of the Model Provisions to make the TPO, has provided for a complete code for its TPO, including penalties and has provided for a defence which is more restricted than that which might have been available under the Model Provisions. The Model Provisions, if adopted, would have enabled the defendants to establish that defence if they proved that the trees were dying or dead. The TPO requires a defendant to prove that the trees were dead, as defined, not merely that the trees were dying, to establish a defence.
73 It is also apparent that the Model Provisions have no application to these proceedings for another reason. The defence provided by cl 8(6) of the Model Provisions is expressly limited to “proceedings under this clause”. The summons filed in each of the proceedings against the defendants have not been instituted pursuant to cl 8 of the Model Provisions. Rather they have been instituted pursuant to the TPO. The charges are specific, and are limited to a breach of the TPO which creates an offence under s 125(1) of EP&A Act. The Model Provisions are only relevant historically to show that the Drummoyne Council adopted cl 8 of the Model Provisions, thereby enabling it to prohibit the removal of trees or land affected by the provisions of its LEP.
74 For these reasons the Court concludes that the Model Provisions and the defence provided by cl 8(6) thereof has no application to the charges now before the Court.
The Defences to the TPO
75 Several authorities refer to the principle that the onus of proof lies upon a defendant to establish that he or she is entitled to rely upon a statutory exemption. In this instance the exemption is provided by cl 7 of the TPO: see Director of Public Prosecutions v United Telecasters Sydney Ltd (1989 - 1990) 168 CLR 594 per Brennan, Dawson, Gaudron JJ at 600-601; Toohey and McHugh JJ at 611; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 per Dawson, Toohey, Gaudron JJ (at p 258-259); ADI Ltd v Environment Protection Authority (2001) 118 A Crim R 335, (at par 13-18) per Foster AJA. Such defence must be established on the balance of probabilities (s141(2) Evidence Act 1995)
Did the defendants have the written consent of the owner of the land?
76 The evidence establishes that the trees were located upon common property of the Body Corporate Strata Plan No. 5031. The Body Corporate did not give written consent for removal of the trees.
77 It follows that a fundamental requirement of the defence has not been established. Accordingly, it becomes unnecessary to determine whether the trees, or either of them, was “dead”, as that term is defined in the TPO. Nevertheless, the Court makes the following findings.
Were the trees dead when they were cut down?
78 The Court has had the benefit of assessing the witnesses and finds the evidence of Ms Barnes to credible. Ms Barnes had been monitoring the condition of the trees constantly following their deterioration in January 2001. She paid meticulous attention to the trees because of her concern that they had been poisoned. The Court finds the testimony of Ms Barnes to be accurate, despite the attacks made upon her by the defendants, and to be the most reliable of all witnesses with regard to the condition of the trees at the date of their removal. Accordingly the Court accepts her recollections of conversations, and of her visual observations.
79 Ms Barnes was adamant that the green portion in the crown of T2 was increasing. She rejected the suggestion as “totally incorrect” that T1 had “an amount of green leaves in that tree but the rest of it was brown”. Ms Barnes had a vivid recollection of the events concerning removal of the trees, and of her conversations with Mr Bird. The Court accepts her evidence of such matters.
80 Certain discrepancies exist in the testimonies of the witnesses of the prosecution concerning the extent of the green foliage of each of the trees. The Court is satisfied that such differences are not sufficient to detract from the accuracy of Ms Barnes’ evidence. Ms Barnes made detailed visual observations and, her testimony, concerning the condition of the trees, is considered more reliable than that of the experts whose evidence was based essentially on photographs and statements.
81 Mr Langley did not have a clear view of the trees and his recollection concerning the state of the trees was inconsistent, not only with the evidence of the prosecutor, but also with the defendants’ evidence. Accordingly his evidence is of little weight.
82 The evidence of Mr McQuillan is also of little weight. He did not have the same degree of special interest in the trees as that of Ms Barnes and Mr Johnson, and his evidence of his visual observations was inconsistent with all of the other witnesses.
83 The observations of the trees by Mr Carmody was fleeting. The Court accepts that he noticed brown foliage on the tops of the trees during his drive past No. 26. His evidence however does not suggest that he studied the condition of the trees, nor made a close observation. Mr Carmody did not stop to inspect the trees and only went to the site after this hearing commenced being eighteen months following his observation. In so far as his evidence conflicts with the evidence of Ms Barnes and Mr Johnson, the Court considers the observations of the latter witnesses to be more reliable because of their detailed observations.
84 The expert witness relied upon different definitions of the ‘crown’ of a tree. “The Language of Botany” by C Debenham contains the following definition:-
- Crown: of a tree, the part above the first branches
The Macquarie Dictionary (second revised edition) contains the following definition of crown:-
- 12. bot. a. the leaves and living branches of a tree
Based upon the evidence of Ms Barnes the Court is satisfied beyond reasonable doubt that green foliage existed in the upper portions of both trees. Accordingly it is unnecessary to determine which definition is accurate because both trees were holding moisture in their trunks and had some green foliage. It follows that neither tree was “dead” as defined in the TPO.
85 The Court is therefore satisfied beyond reasonable doubt that the trees were not dead as defined in the TPO when they were cut down.
Honest and reasonable mistake of fact
86 The defendants have raised the defence of honest and reasonable mistake of fact. The prosecutor accepts that since an offence pursuant to s 125(1) of the EP&A Act attracts strict liability, an honest and reasonable mistaken belief in a state of facts held by the defendants would, if established, entitle the defendants to an acquittal: Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v The Queen (1985) 157 CLR 523. To succeed in such defence, it is necessary for the defendants to satisfy two matters. Firstly that a mistake of fact existed in relation to their belief that they held written consent to enter upon the lands of No. 26 for the purpose of cutting down the trees and secondly that the trees were “dead”, as that term is defined in the TPO.
87 If the defendants or either of them establishes on the balance of probabilities a defence of honest and reasonable mistake, the onus then rests upon the prosecution to disprove beyond reasonable doubt that defence. Stein J in Hunter Water Board v State Rail Authority of NSW [No 1] (1992) 75 LGRA 15 referred to He Kaw Teh and stated:
It is clear beyond argument that if the question of honest and reasonable belief arises the prosecution must undertake the burden of negativing such belief beyond reasonable doubt.
The Court of Criminal Appeal in State Rail Authority of NSW v Hunter Water Board (1992) 8 NSWLR 721 (CCA) at p. 726 referred to the observations of Stein J and did not disagree.
- Honest and reasonable mistake relating to written consent
88 Mr Bird testified that the Body Corporate of No. 26 had agreed at a meeting to authorise the removal of the trees. By letter dated 13th August 2001, Mr Bird wrote to the prosecutor, stating inter alia:-
- Both Body Corporates agreed in March that they had died and were a danger to residents of both buildings also our strata title manager also wrote to Council on my behalf.
- The fact is that no resolution approving removal of the trees was issued and no authorisation either oral or in writing was given by the Body Corporate as alleged. Additionally Mr Bird was informed at the meeting with the Mayor that the letter received from the strata manager was not satisfactory. The meeting of the Body Corporate discussed the removal of a Banksia tree, not the trees in question. Further, Mr Ian Richardson, the Chairman of the Body Corporate, who allegedly gave oral permission, was not called as a witness. The Body Corporate of No. 26 wrote to the council after the cutting down of the trees, stating its objection to the removal of the trees.
89 The inference can be drawn from Mr Bird’s application for consent of the Body Corporate that Mr Bird was well aware that consent in writing was required for the removal of the trees. Mr Bird did not suggest that he read the TPO and formed any opinion that the trees did not require permission for their removal because they were dead. In these circumstances the Court is unable to conclude that Mr Bird held an honest and reasonable belief that he had written consent of the Body Corporate of No. 26 for removal of the trees.
90 With respect to Mr Christopher, there is no evidence that he sought or requested production of any written consent of the Body Corporate of No. 26. Mr Christopher had operated as tree lopper in the Drummoyne area for 12 years and knew that Mr Bird lived at No. 28. From his twelve years experience as a tree lopper operating in the locality it can be inferred that Mr Christopher was aware that the written consent of the owner of the property was required. Further, even if such belief was held when he attended the site it must have been dispelled within minutes of commencement of tree cutting operations. He refused to stop using the chainsaw at an early stage when the need for permission was raised and objection was vehemently made by Ms Barnes. Accordingly, he was placed directly on notice of this need for permission but elected to disregard such requirement. There is no basis for the defence that Mr Christopher believed that written permission existed.
Honest and reasonable mistake that the trees were dead
91 The evidence establishes that Mr Bird was determined to remove the trees. The trees had allegedly caused nuisance to the owners of No. 28 because of debris falling into their swimming pool. Whether there was another motive of Mr Bird in having the trees cut down as submitted by the prosecution, namely interference with views, is a matter in respect of which the Court is unable to make any finding.
92 Mr Bird’s repeated assertions that as far as he is concerned the trees were dead does not assist his defence. His testimony was inconsistent and therefore unreliable as evidenced by his claim that he had permission of the Body Corporate (of No. 26) when in fact none existed. He also claimed that it was agreed at the meeting with the Mayor that the trees were dead, when in fact the minute records no such conclusion. Mr Bird deposed that:-
- “…as far as I was concerned the trees were dead or dying. There could have been a few little green leaves but not – wouldn’t be lucky to be 5 per cent in my opinion.”
93 The Court must consider the claim that an honest and reasonable belief was held by Mr Bird and by Mr Christopher that the trees were dead based upon their visual observations. Mr Bird acknowledged that T1 was “not completely” dead. Mr Christopher admitted that photograph No. 11 showed that the crown of T1 was not totally dead. In view of these admissions neither defendant could of held a belief that T1 was dead.
94 As to T2 there is a conflict of evidence concerning the appearance of such tree. Against the evidence of the defendants that T2 had no green foliage is the evidence of several witnesses of the prosecution to the contrary. In these circumstances the Court considers the defendants have not discharged the burden of proof that they held an honest and reasonable belief that T2 was dead as defined in the TPO.
95 In view of this finding it becomes unnecessary to deal with the prosecutor’s submissions that the offence is established by proof of the destruction of only one tree: see Sydney Water at 365; Dragan Radic (2001) 122 A Crim R 70 (CCA) per Carruthers AJA at p. 79.
Environmental Damage
96 It is relevant for the Court to consider the extent of environmental damage caused by the removal of the trees for the purpose of assessment of penalty. The environmental damage resulting from the removal of the trees is succinctly summarised in the letter written by Ms Barnes to the prosecutor dated 28 June 2001 as follows:-
- The trees were the only substantial sized native trees on the property at 26 Walton Crescent. They provided much needed shade for the BBQ area and acted as wind breaks. They provided shelter and food for a number of native fauna species including silvereyes, rosellas, rainbow lorikeets, honeyeaters, and native noisy miners. They also acted as a privacy screen from adjoining properties. The loss of these trees is a great blow to residents and diminishes the amenity of the property.
97 Mr Langley wrote to the prosecutor by letter dated 28 July 2001 in which he stated, inter alia:-
- These trees were very important as shade trees in 26 Walton Crescent. In fact, they were the only 2 trees which provided much shade in the front garden in the heat of summer.
98 The Court accepts the above statement as being an accurate summary of the environmental damage which has resulted from the conduct of each defendant.
- Penalty
99 The Court will hear submissions on penalty.
Orders
100 In matter No 50136 of 2001, the Court orders that:
1. The defendant, Frank Edward Bird, is convicted of the offence as charged.
2. Parties be at liberty to obtain a date for the hearing of penalty.
101 In matter No. 50137 of 2001, the Court orders that:
1. The defendant, Michael John Christopher, is convicted of the offence as charged.
2. Parties be at liberty to obtain a date for the hearing of penalty.
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