Holroyd City Council v El Baysari SM
[2005] NSWLEC 179
•04/19/2005
Land and Environment Court
of New South Wales
CITATION: Holroyd City Council v El Baysari SM & Anor [2005] NSWLEC 179
PARTIES: PROSECUTOR
Holroyd City CouncilDEFENDANTS
Samia - Marie El-Baysari
Al - Badoui El-BaysariFILE NUMBER(S): 50064 of 2004; 50065 of 2004
CORAM: Talbot J
KEY ISSUES: Prosecution :- test for proof by circumstantial evidence.
Planning instruments:- construction of tree preservation order - severance.
Construction and interpretation - effect of tree preservation order.
Evidence:- circumstantial evidence.LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4, s 26, s 26(1)(e), s 26(1)(f), s 125, s 125(1),
Holroyd Local Environmental Plan 1991 cl 18CASES CITED: Beckwith v The Queen (1976) 135 CLR 569;
Cameron v Lake Macquarie City Council (2000) 107 LGERA 308;
Giles v Dodds [1947] VLR 465;
Hornsby Shire Council v Winsloe (1998) 101 LGERA 117 ;
Hornsby Shire Council v Denise ("Densey") Clyne Matter No. 50040 of 1998 Land and Environment Court 29 October 1998, unreported ;
Knight v The Queen (1992) 175 CLR 495 ;
Latoudis v Casey (1990) 170 CLR 534;
Martin v Osborne (1936) 55 CLR 367 ;
R v Adams (1935) 53 CLR 563DATES OF HEARING: 21/03/2005, 22/03/2005, 23/03/2005, 04/04/2005, 05/05/2005
DATE OF JUDGMENT:
04/19/2005LEGAL REPRESENTATIVES: PROSECUTOR
DEFENDANTS
Miss J M Jagot (Barrister)
SOLICITORS
McKees
Mr D Marks (Barrister)
SOLICITORS
James Lahood & Associates
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTalbot J
19 April 2005
50064 of 2004 Holroyd City Council v Samia - Marie El-Baysari
JUDGMENT50065 of 2004 Holroyd City Council v Al - Badoui El-Baysari
1 Talbot J: Both defendants appear to answer the charge that they respectively committed an offence under s 125 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in that they did injure a tree (a Lemon-Scented Gum) on the premises at 53 Palmer Street Guildford, being Lot 6 DP 25445, contrary to a prohibition contained in a Tree Management Order (“TMO”) duly made by Holroyd City Council (“the prosecutor”) under the EP&A Act.
2 The particulars of the offence were provided in an Amended Summons:-
- Particulars of the Prohibition Contained in the Tree Management Order
- By its Tree Management Order gazetted 2 May 2003 ( the Tree Management Order ) made under the authority of Clause 18 of the Holroyd Local Environmental Plan 1991, being an instrument duly made under the Environmental Planning and Assessment Act 1979 ( the Act ), Holroyd City Council ( the Council ) prohibited the injury, pruning or removal including ringbarking, poisoning, cutting down, lopping, topping, pollarding and transplanting of any tree having a height greater than 3.6m, without first obtaining the written consent of the Council unless the tree was exempt from the order under Clause 8 of the Tree Management Order.
- Particulars of the Tree/s and the Actions Contrary to the Tree Management Order
- Contrary to Clause 4 of the Tree Management Order, the defendant, by itself, its servants or agents did injure a Lemon-Scented Gum (the Gum Tree) being a mature tree of approximately 20m in height with an average crown spread of 18m. The defendant, by itself, its servants or agents did:
- The above Gum Tree does not come within the exempt classes of trees set out in Clause 8 of the Tree Management Order.
3 Each of the defendants has entered a plea of not guilty. It is agreed that evidence in one matter shall be evidence in the other.
The statutory framework
4 Section 26 of the EP&A Act relevantly provides as follows:-
…
…
…
5 “Control” in relation to development or any other act, matter or thing is defined by s 4 of the EP&A Act as follows:-
(a) consent to, permit, regulate, restrict or prohibit that development or that other act, matter or thing, either unconditionally or subject to conditions, or
(b) confer or impose on a consent authority functions with respect to consenting to, permitting, regulating, restricting or prohibiting that development or that other act, matter or thing, either unconditionally or subject to conditions.
6 The relevant parts of cl 18 of Holroyd Local Environmental Plan 1991 (“LEP 1991”) are as follows:-
(1) If it appears to the council that it is expedient for the purpose of securing amenity or of preserving existing amenity, it may, for that purpose and by resolution, make an order (a “tree preservation order”) and may, by resolution, rescind or vary any such order.
(2) A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees specified in the order except with the consent of the council and any such consent may be given subject to such conditions as the council thinks fit.
(3) A tree preservation order may relate to any tree or trees or to any specified class, type or description of trees on land described particularly or generally be (sic) reference to the City of Holroyd or any divisions of that City.
(4) The council shall forthwith upon the making of a tree preservation order cause notice of the making of the order to be published in the Gazette and in a newspaper circulating in the area in which the land described in the order is situated.
(5) A person must not contravene or cause or permit a contravention of a tree preservation order.
(6) A person does not contravene or cause or permit a contravention of a tree preservation order if the person establishes that the tree ringbarked, cut down, topped, lopped, removed, injured or wilfully destroyed was dying or dead or had become dangerous.
(7) …
(8) …
7 Following a report of the Development and Community Services Committee of Council on 15 April 2003, the Council adopted the recommendation of the Committee and passed the following resolution:-
i) That Council adopt the draft Tree Management Order in place of the current Tree Preservation Order, as amended by this report.
ii) That upon notification in the Government Gazette, public notice be given of the Tree Management Order.
iii) That Council enclose the “Tree Canopy/Pruning Guidelines” and revised “Tree Management Order” Application Form.
iv) That provision be made in the 2003/2004 budget for an allocation of $7500 to engage consultant arborists to assess TMO applications on appeal.
8 The TMO was published by a Notice in New South Wales Government Gazette No. 81, 2 May 2003.
9 The TMO contains cl 4.0 as follows:-
4.0 Offences under this Order
This order prohibits the injury, pruning or removal of any tree without the written consent of Council.
Injury, pruning or removal includes; ringbarking, poisoning, cutting down, lopping, topping, pollarding and transplanting of established trees. It also includes severing of any roots greater than 30mm in diameter, landscape or building work that involves building-up or changing soil levels within the dripline area. The ‘dripline’ area is the area of ground vertically below or within the spread of the canopy or branches. Large-scale filling within this area is likely to cause damage to tree roots that may in turn cause tree death or instability over time.
Note: The dripline of the leaf canopy usually corresponds at least to the limit of roots.
Also prohibited are actions causing damage to the tree’s trunk, including drilling or boring, other than for the purpose of pest treatment or hazard assessment by a qualified professional.
10 There is no contention that the defendants have obtained a written consent of Council in respect of the tree the subject of the charge under the provision of the TMO or otherwise. However a Tree Removal Application was made to the Council by the defendants on 14 December 2003. On 13 January 2004 the Council’s Landscape Technical Officer, Jason Vicars Rothery, in response to the Tree Removal Application and after visiting the property, refused the application to remove the subject tree but issued an authority to carry out tree work, thereby allowing pruning of dead wood and maintenance.
The defences
11 The defendants’ counsel, Mr Marks, has raised the following defences:-
1. The making of the TMO is ultra vires the power conferred on Council by cl 18 of the LEP by exceeding the limits of the power prescribed in cl 18(2) and (3) manifest in cl 4 of the TMO. Consequently cl 4 of the TMO is invalid and does not constitute a valid prohibition falling within the terms of s 125(1) of the EP&A Act.
2. In the alternative, if the validity of the TMO can be preserved by severing or reading down the offending provisions then:-
- 2.1 The word “injury” in the TMO must bear the same meaning as its meaning in clause 18(2) of the LEP.
- 2.2 In Clause 18(2) of the LEP “injury” means significant, or not trivial, injury which causes:
- 2.2.1 serious or potentially serious health consequences for the tree; or
2.2.2 an alteration to the overall appearance of the tree.
3. In the further alternative the prosecutor has not proved its circumstantial case to the required standard.
The effect of the Tree Management Order
12 The basis for the charge arises from s 125(1) of the EP&A Act as follows:
(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
13 The present charge does not raise the issues which were the subject of argument in Hornsby Shire Council v Winsloe (1998) 101 LGERA 117 or Hornsby Shire Council v Denise (“Densey”) Clyne Matter No. 50040 of 1998 Land and Environment Court 29 October 1998, unreported because LEP 1991 cl 18(5) contains an express provision that a person must not contravene or cause or permit a contravention of a tree preservation order.
14 As Lloyd J pointed out in Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 at 313 a provision such as cl 18 means that the subject of a tree preservation order is an act, matter or thing referred to in s 26 that is controlled by an environmental planning instrument and accordingly falls within the definition of “development” contained in s 4 of the Act. Lloyd J found that the expanded definition of “control” set out above tended to support his view.
15 Irrespective of whether I adopt the reasoning in Clyne or Cameron it must be the case that a charge in respect of action taken in relation to a tree contrary to a prohibition contained in a tree preservation order, duly made pursuant to Holroyd LEP, is a valid charge. That leads to the question whether the TMO is made within the power given to the Council by cl 18 of the LEP.
16 Clause 18(1) identifies the objective of making a tree preservation order as being “expedient for the purpose of securing amenity or of preserving existing amenity.” The evidence does not elucidate the reason for making the TMO as a tree preservation order except for a comprehensive statement contained in the introduction to the TMO which speaks to the importance of trees in an urban environment and potential for conflict with buildings or other structures. Clause 2 of the TMO refers to the fact that Council has a responsibility to sustainably manage its urban tree resource for the benefit of all current and future residents. A tree preservation order that controls the removal of or damage to trees in the context of an urban environment on its face supports the view that it was open for Council to decide that it was expedient to make an order in accordance with cl 18(1).
17 I agree with Miss Jagot, who appears for the prosecutor, that provided the order made meets the descriptors in cl 18(1) and (2) of the LEP it is a tree preservation order for the purposes of cl 18 notwithstanding that it is described as a tree management order. Although I originally raised a question in the course of argument I nevertheless accept that it is the substance of the order made rather than the titling of the order that is relevant.
18 Mr Marks correctly makes the point that cl 18(2) does not contain any relevant prohibition. The sub clause does no more than grant the power for the Council to prohibit the “ringbarking, cutting down, topping, lopping, removing, injury or wilful destruction of any tree or trees specified in the order.” The relevant proscriptive provision is found in cl 18(5), which states that “a person must not contravene or cause or permit a contravention of a tree preservation order.” It is cl 18(5) of the LEP that enables me to make the distinction between the scheme in this case and the circumstances dealt with by the Court in Winsloe.
19 It is necessary to construe the width of the power vested in the Council pursuant to cl 18(2) of the LEP to determine whether the prohibition in cl 4 of the TMO is ultra vires. Nonetheless it is important to remember that when construing the provisions contained in an instrument of delegated legislation the Court should take a practical approach rather than the stricter and meticulous approach that is adopted when interpreting sections of an Act of Parliament. On the other hand where the delegated legislation has the effect of creating a criminal offence that carries with it a serious penal sanction, a court must be careful to find that a breach of the legislation has been proved beyond reasonable doubt.
20 A comparison of the wording in cl 18(2) of the LEP with the wording in cl 4 of the TMO shows that there is common reference to ringbarking, cutting down, topping and lopping and consistently with “removing” and “injuring” the words “injury” and “removal” appear in the TMO. There is no reference to “wilful destruction” transposed from cl 18(2) of the LEP to cl 4 of the TMO. Clause 4 includes reference to actions not specified in cl 18(2), namely, pruning, poisoning, pollarding and transplanting as well as including “severing of any roots greater than 30mm in diameter, landscape or building work that involves building-up or changing soil levels within the drip line area” and the prohibited actions referred to in the last paragraph.
21 The defendants are charged that they did injure the tree in the manner particularised and as set out above at [2]. There is nothing to show that the severing of any roots greater than 30mm in diameter would necessarily fall into one of the authorised prohibited categories in cl 18(2) unless it can be shown that the severing had the effect of injuring or wilful destruction of the tree. There is no such limitation in the second paragraph of cl 4. The same might be said about the carrying out of building work particularised in the summons that appears to adopt the wording from the amplified and extended definition in cl 4 of the TMO. There is no reference to the actions described as “Cut, chop or hack a butress (sic) root” in cl 18(2) or cl 4. If such a particular is to support the charge then the action of the defendants, if proved, must be shown to have resulted in injury or wilful destruction of the tree.
22 As a matter of construction the words “specified in the order” found in 18(2) relate to the identification of a particular tree or trees pursuant to cl 18(3). The interposition of “any” lends weight to this interpretation so that the intention was for the Council to specify the category of trees to be the subject of a tree preservation order.
23 It was open for the Council to prohibit the doing of any of the things referred to in cl 18(2) but not to expand the category of prohibited acts in the making of the tree preservation order. For example, if the severing of a root greater than 30mm in diameter does not have the effect of causing injury to the tree and does not otherwise fit within the ambit of cl 18(2) the tree preservation order cannot have the effect of making the severing of the root an offence.
24 I agree with Miss Jagot that it is not correct, as Mr Marks contends, that an order, to be valid, must deal with all the matters in cl 18(2). There is no issue between Mr Marks and Miss Jagot that an order must not deal with any additional matters beyond those enumerated.
25 I am unable to comprehend any reason for the Council drafting cl 4 of the TMO in the way it has done. Apart from being inelegant, as Miss Jagot describes it, it creates a disjunction with the provisions of cl 18(2). It has interposed “pruning” as a prohibited act without qualification. Lopping, topping and pollarding according to their ordinary meaning may in some circumstances amount to pruning. Instead of prohibiting lopping and topping per se, as it was entitled to do, the Council has included those actions by a sidewind. In the context of the comparatively plain words of cl 18(2), the latter parts of cl 4 of the TMO serves to create utter confusion. If the second and last paragraph of cl 4 are to be regarded as doing no more than providing examples or illustrations of injury, pruning or removal they can be ignored. Severance does no damage to the operation of the TMO to prohibit the injury, pruning or removal of any tree without the written consent of the Council.
26 In my view such an approach would be consistent with that taken by the High Court in R v Adams (1935) 53 CLR 563 and Beckwith v The Queen (1976) 135 CLR 569.
27 In Adams in a joint judgment Rich, Dixon, Evatt and McTiernan JJ explained at p 567-568 as follows:-
- No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not be construed as extending any penal category.
28 In Beckwith at p 576 Gibbs J observed that:-
- In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams; Craies on Statute Law, 7th ed (1971), pp 529-534.
29 I do not have to decide in this case whether the word “pruning” should be omitted as there is no issue in this case which requires me to find one way or the other. I do find however that deletion of the word “pruning” by severance would not result in the residue of the sentence operating differently to the manner in which it would have operated if severance had not occurred. The residue would continue to operate within the apparent intention of the Council to make a tree preservation order consistent with cl 18(2). I regard the offending provisions of cl 4 as no more than part of a clumsy attempt to comply with cl 18 of the LEP with an explanation of the guidelines the Council will adopt in applying its provisions. The rejection of the objectionable superfluous parts of the clause will not mean that the otherwise valid provisions will operate differently or produce a different result.
30 Recognising that s 26 of the EP&A Act authorises an environmental planning instrument to make provision for protecting or preserving trees, cl 18(1) of the LEP identifies the purpose of prohibiting the matters referred to in cl 18(2) as securing amenity or of preserving existing amenity. Whether the amenity to be secured or preserved is the amenity or health of trees as Mr Marks suggests or the amenity of the council area generally, and thereby the people using the area, is a moot point that does not need to be decided as the ongoing health of the tree or trees is an essential element in either case. The test for determining whether action taken in relation to a tree is prohibited is whether the injury sustained by whatever means has a detrimental effect on the tree.
31 The consequence of taking the above approach is that the charge alleging that the defendants “did injure a tree” can be sustained by the application of the first sentence of cl 4 of the TMO without reference to the balance of the clause. Moreover, if the prosecutor can prove that any one or more of the acts particularised in the summons caused an injury to the tree the defendants may be liable to conviction. As the charge does not encompass removal of the tree (or indeed pruning) the sole matter to be considered is whether there was an injury to the tree. Injury is to be given its common meaning as “a physical harm or damage” (The Australian Oxford Dictionary) or “harm of any kind done or sustained” (The Macquarie Dictionary). Harm is properly to be regarded as any damage or hurt, apart from trivial or superficial damage.
The facts
32 There is no direct evidence of either defendant actually cutting, chopping, scratching, breaking or otherwise physically interfering with any part of the tree. The prosecutor is seeking to establish by circumstantial evidence that during the course of building an extension to an existing deck sometime between January and March 2004 either significant parts of the roots of the tree were severed and removed or that a substantial buttress root was damaged as the result of a blow from a tool or other instrument. Injury is also alleged to have resulted from a change in soil levels involved in the building work. It is further suggested by the Council’s consulting arborist that the use of cement as a component of the piers supporting the deck may have caused damage to the tree by the introduction of detrimental substances into the soil. The last suggestion is not reflected in the particulars.
33 The evidence enables me to conclude that the tree the subject of the proceedings was a tree subject to the TMO. According to the evidence of Mr Rothery when he visited the property on 12 January 2004 the canopy was in good growing condition and approximately 90% canopy cover with little or no dead wood. He said the canopy cover was dark green with lighter green new growth indicative of the species. In his opinion it appeared at that date to be in an “acceptable growing condition.” However Charles Patrick Manche who is the Council’s Tree Management Officer and Mr Rothery’s supervisor has given an opinion that just saying a tree is green is not enough to conclude that the tree is in good condition because there are a lot of factors that need to be looked at such as the fact that a tree is a myriad of insect life and as part of the environment does not grow alone. .
34 The defendants purchased the property on which the tree was growing in June 2003. When Mr El-Baysari was asked whether at the time he started extending the deck the tree looked in good health, he agreed “it was good” and referred to the leaves as “green and dry.” Mrs El-Baysari described her concern for the safety for her son as some branches from the tree had become loose and fallen into the backyard. She described some of the fallen branches as large ones but was unable to specify the actual size.
35 Mrs El-Baysari agreed that when Mr Rothery visited the property on 12 January 2004 there was “lots of green foliage.” Mrs El-Baysari was reluctant to agree with the proposition put to her by Miss Jagot that the tree had “abundant green foliage” before work commenced on the deck and that at that date, immediately before commencement, it was in the same condition as it was on 12 January 2004. She explained the reason for her reluctance was that the tree was always shedding leaves and sticks. To her the tree always “looked like it was partially dry.” She agreed however that it looked to be in a state of “severe decline” over a short space of time.
36 When he again attended the premises on 9 March 2004 Mr Rothery says that he observed the subject tree was in a significant state of decline and appeared to be dead. The entire tree canopy appeared to have rapidly declined since his previous site inspection on 12 January 2004. He described the foliage colouring as a light brown. The overall height and spread and the trunk of the tree had not changed in the period between his visits, thereby indicating in his opinion a rapid decline or death of the subject tree rather than a gradual decline. Mr Manche had visited the property on 3 March 2004 and “noted a large dead Gum tree in the rear yard.”
37 Dennis William Marsden is a qualified consulting arborist engaged by the Council in March 2004 to investigate whether the subject tree had been poisoned. Following a site inspection on 9 March 2004 he prepared a report wherein he rejected the prospect of poisoning and attributed the condition of the tree to root damage and root loss incurred in the installation of the pier footings. His report concentrated on what he described as the overriding consideration of the issue of tree stability. He concluded that the tree had suffered desiccation through root damage and root loss causing the foliage of the tree to turn brown and some defoliation. He recommended that the tree be removed, as it was potentially unstable as a consequence of the root damage.
38 Mr Marsden inspected the tree on only the one occasion for a period of between 20 minutes and three quarters of an hour. He noticed that a pier supporting decking was in line with a primary root buttress, 60cm from the base of the tree. He carried out an exploratory excavation and found what he described as a primary woody root of 20cm diameter adjacent to the pier hole. The bark and wood of the root had been damaged. He says that mycelium found on the damaged sections had not penetrated the bark or wood to any degree suggesting that the mycelium had formed recently. He then carried out an exploratory excavation at the next nearest pier hole, 1.3m from the base of the tree. No direct evidence of roots was found in the second excavation. However he states that several pieces of wood were recovered from that excavation. He also found three sections of what he described as secondary woody roots within the shrubbery adjacent to the tree. Two of the sections were 90cm long and the smaller section 30cm, all approximately 50mm in diameter. He formed an opinion that the three sections of root belonged to the subject tree but he was not able to confirm this and no formal test, such as DNA, was carried out.
39 Hugh Thomas Scott Taylor is also a qualified consulting arborist. Mr Taylor was retained by the defendants in the days immediately preceding the hearing and prepared a report on the basis of photographs and the evidence presented by Mr Marsden and two Council officers.
40 Mr Taylor made the following criticisms of the prosecutor’s evidence:-
a) No aerial inspection of the tree was performed.
b) There was no scientific testing of the tree.
c) There was no evidence that the critical root mass had been damaged.
d) No testing was carried out for Armillaria, a possible cause of death.
e) The tree could have been in a spiral of decline for a number of years as a result of drought.
f) It is possible that a large infestation of insects could have resulted in the full canopy decline of the tree. However no aerial inspection was undertaken to rule this out.
41 In an opinion expressed in his affidavit Mr Taylor says that the Lemon-Scented Gum Tree, the subject of the proceedings, has died due to other contributing factors not primarily from root disturbance as concluded by the prosecutor’s evidence. Mr Taylor never inspected the tree that has now been felled and removed from the property.
42 Mr Taylor agreed in cross examination that given the assumed circumstances of the subject tree in January and March respectively, as put to him by Miss Jagot, it would be highly unlikely that an arborist would conclude Armillaria was the cause of the death of the tree. The assumptions included no evidence of chlorotic foliage, no lesions on the trunk and no sign of mycelium associated with Armillaria on a major uncovered root. Making the same assumptions in relation to the circumstances of the tree but on the further assumption of an additional fact that there were no signs or symptoms of major pests present, Mr Taylor also agreed that it would be unreasonable for an arborist to conclude that the cause of death of the tree was insect infestation. Mr Taylor further agreed in cross examination that the drought by itself would not in the circumstances described to him be the cause of death and decline of the subject tree. He accepted that many other factors would have to have taken place in order to lead to the decline and death of the tree.
43 Mr Taylor acknowledged that if the top section of the root unearthed by Mr Marsden between the trunk of the tree and the nearest pier had been cut off or hacked in some way it could cause a rapid demise of the tree. When challenged about his conclusion that the tree had died due to other contributing factors, not primarily from root disturbance, Mr Taylor told Miss Jagot that tree death happens for “many, many reasons” and that he could not say how the subject tree “died at all.”
44 It is Mr Taylor’s evidence that even before DNA testing was available arborists would, as a matter of practice when called upon to identify which species tree roots belong to, send the roots to a laboratory for testing. Neither course was taken by the Council in respect of the three sticks.
45 In re examination Mr Taylor explained to Mr Marks that when he answered questions in cross examination about signs or symptoms of the presence of pests or insects there could be hundreds of different insects, diseases and fungi that affect trees and that each of these cause different types of symptoms. In particular he explained that Armillaria is a very complicated fungus and that in order to identify it clearly and precisely the services of a micro-mycologist would be required. Furthermore there are “many, many, many different species there’s like a hundred thousand species of fungi.”
46 After Mr Rothery refused the application to remove the subject tree Mrs El-Baysari telephoned the Council on 15 January 2004 and had a conversation with a Secretary-Administrative Assistant. The exact terms of the telephone conversation are in dispute. Both Mrs El-Baysari and the Assistant, Natalie Anne Camilleri, were asked for their recollection after the expiration of at least six months. Ms Camilleri made an abbreviated file note of the conversation the following day. Mrs El-Baysari insists that the purpose of the conversation was to ascertain the reasons for refusal. Ms Camilleri asserts that during the conversation Mrs El-Baysari contended that she would remove the tree in any event following which there was a conversation about the penalty for doing so. Mrs El-Baysari denied that she reiterated an intention to remove the tree notwithstanding refusal of the application.
47 Miss Jagot submits that Mrs El-Baysari should not be believed when she says that after the application was refused she did not maintain an intention to remove the tree. Mrs El-Baysari could not recall exactly when it was she and her husband decided to build the deck but denies that the decision to remove the tree was motivated by the desire to build the deck rather than an alleged desire to eliminate a potential danger to her son from falling branches. Although some of the answers given by Mrs El-Baysari during cross-examination appear to have been evasive I am prepared to give her the benefit of the doubt that she genuinely did not know the answers to the questions put to her by Miss Jagot, particularly in respect of technical matters regarding the tree such as measurements and the extent of roots. Her demeanour in the witness box did not suggest to me that she was being untruthful and I am prepared to accept her version of events.
48 The only significant matter that arose during the course of examination of Mr El-Baysari related to whether or not he had struck the roots of the tree during the course of digging holes for the purpose of placing piers in the ground. He emphatically denied that he had struck a root during the course of that activity.
49 When asked in cross examination whether he knew that digging close to the tree he would meet roots of the tree he answered:-
A. But I didn’t – I did not see anything – I did not reach to anything.
50 When the question was repeated he said:-
- A. I did not, reach. I did not meet the roots.
51 Further on he insisted:-
- A. I did not hit the roots and it wasn’t my intention to do that.
- A. I’m sure I did not hit the roots. I didn’t hit anything so how would I have hit the roots. I was using the shovel so how could I have hit the roots with the shovel?
52 He could not be persuaded to change his answer despite continuing cross-examination by Miss Jagot. Mr El-Baysari explained that he never really thought about the roots of the tree as he fixed the piers according to the line of the old piers. The alleged damage to the top of the buttress root is outside the line of the piers and the prosecutor has not proved severance of the root further away from the tree in the area of the pier itself. The evidence is confined to the damage of the root as Mr Marsden eventually described it.
53 The prosecutor relies on the circumstantial evidence that the tree was apparently in good health before commencement of the building work and that it was dead within six or seven weeks after the work was carried out. Furthermore the new piers for the deck extension included a pier within 60cm of the base of the tree and another at 1.3m from the trunk and that a hole 15 to 20cm deep had been created. The hole in each case was about the size of each pier. Moreover a buttress or anchor root of the tree 20cm across located adjacent to the nearest pier hole showed damage to its bark and wood consistent with being struck by an implement and that three pieces of timber consistent with secondary woody roots were found within the shrubbery adjacent to the tree. It is the Council’s case that Mr El-Baysari paid no attention to the question of roots when locating and digging the holes. Ultimately Miss Jagot submits that there is no reasonable hypothesis available as to the cause of damage to the buttress root or the severing of the three secondary woody roots other than the construction of the deck.
54 In response to the Council’s case Mr Marks makes the point consistent with my construction of the effect of the making of the TMO that in order for there to be a breach of cl 18(5) of the LEP the prosector must prove that there was an injury to the tree that caused the requisite harm or damage to interfere with the amenity of the tree.
55 The best evidence of the date of the alleged injury to the primary woody root observed by Mr Marsden is that the mycelium found on the damaged sections had formed recently. Otherwise no evidence puts the alleged injury to that root of the tree, or to the three pieces of timber found in the shrubbery in a temporal context. The age of the root damage is important as the defendants only purchased the property in June 2003. In order to cause the damage to the root exposed by Mr Marsden there would need to be digging or scraping at that spot. Mr El-Baysari says that he merely dug the holes to accommodate the piers and did not notice any roots of a tree.
56 Mr Rothery in his evidence eschewed the allegation particularised in the summons that the carrying of building work had involved building up or changing soil levels within the drip line area of the tree when he said there was no change in soil level on the site.
57 Mr Marsden did give evidence of an opinion that the three sticks of roots bound in the shrubbery came from a Lemon-Scented Gum. He did not go further and connect the root sticks to the particular tree. He would go no further than to say that the bark on the roots was similar in texture and colour of the bark on the trunk and branches and the colour and texture of the wood was similar to the broken sections of wood that he found on the primary root. There is no doubt that Mr Marsden was not prepared to attribute the roots found in the shrubbery to the subject tree as a matter of professional opinion although he said he held the view that the roots came from the tree. It is significant that no direct evidence of roots was found in the second excavation made by Mr Marsden.
58 It is no criticism of Mr Marsden that his examination was cursory because that appears to be the extent of his brief on 9 March 2004. He referred to the existence of seven buttress roots and the prospect of what a more exhaustive investigation may reveal. In this respect the following question and answer during cross examination is instructive.
- Q. Can I put this to you, wouldn’t it have been professionally more effective for the purpose of forming an opinion about the cause of the death through desiccation, wouldn’t it have been professionally more effective and perhaps even more responsible, if I may put it that way, for you to conduct more widespread and thorough investigation into the cause of the death.
- A Yes.
59 It is apparent from a close examination of the evidence given by Mr Marsden in his affidavit, orally in chief and in cross examination that he originally constructed a theory that severance of roots of the tree had taken place thereby leading to desiccation and rapid decline of the tree. When pressed he was forced to support this theory in respect of the buttress root around which he excavated adjacent to the nearest pier, even though he did not investigate whether the root had extended through the hole dug to accommodate the pier or either side of it. He assumed without checking that the root passed through the site of the hole. The assumption has not been proved as a fact and the photographic evidence does not establish it beyond reasonable doubt. Ultimately he agreed that it would have been more appropriate to use the word “damage” than to use the word “sever” in relation to this root. This aspect of Mr Marsden’s evidence demonstrates that he had been striving to formulate a set of facts to support the prosecutor’s case.
60 The prosecutor has established beyond reasonable doubt that the tree existed within the area of the prosecutor and that the tree preservation order in the form of the TMO applied to the subject tree. Something caused the tree to rapidly decline from an apparently healthy specimen to a state of near death in the period between mid January and early March 2004. I am able to find that some damage had been caused to the top part of one root of the tree at a time not determined. Whether or not the cut to the top part of the buttress root uncovered by Mr Marsden was the sole cause of the decline is matter of conjecture, as the evidence of Mr Taylor demonstrates. Nevertheless both experts agree that the cutting or hacking could cause a rapid demise of the tree.
61 Mr Marsden’s opinion that the tree had suffered desiccation through root damage and root loss is based upon his conclusion that three sections of secondary wood root fragments found in the shrubbery and a buttress root had been severed from the tree. There is a doubt about those facts. Mr Taylor found it difficult to accept that the severed woody stick pieces came out of the holes dug for the piers. Even so, as Mr Taylor points out that alone would not necessarily lead to the total loss of the tree. He suggests that if the tree’s root system had been adversely affected by construction of the piers only sections of the tree would die, not the whole tree.
62 I am not able to find beyond reasonable doubt that the three sticks found in the shrubbery either came from the tree or if they did what role, if any, their cutting off played in the demise of the tree. Nor am I able to find that the damage to the buttress root observed by Mr Marsden amounted to severance or that it was the sole cause of the death of the tree.
63 However, that I am not able to determine the cause of rapid decline or death of the tree does not detract from a finding that the damage to the buttress root amounted to an injury to the tree.
64 Nevertheless a finding of guilt against the defendants does not necessarily follow from that determination. The evidence that the defendant Al-Badoui El-Baysari caused the damage is entirely circumstantial.
65 What has been proved is that holes were dug 15 to 20cm deep to accommodate piers to support an extension of a deck to the house. The holes were dug sometime in late January or early February 2004. The damage to a buttress root was observed in the space of 60cm between the base of the tree and the nearest pier. The damage to the root is not at a point which is necessarily a likely place for the digging to have occurred in light of the evidence of Mr El-Baysari, which I accept, namely that he only dug the earth to the extent necessary for the holes and that he does not recall excavating any roots. There is no challenge to this evidence and I have no reason to suggest he was not telling the truth.
66 The injury to the buttress root is consistent with it being struck or scraped by a hard instrument. The evidence does not prove beyond reasonable doubt, or at all, when the injury was incurred. The same applies to a determination of when the three sticks were severed from their source, whatever that was. The defendants had only purchased the house about seven months prior to the building of the deck. Deliberate action to destroy the tree is not rational behaviour for people who have applied for removal of a tree and had consent refused by the Council within a short period beforehand. There is evidence of a pre-existing deck but no evidence of when the construction of that original part of the deck was carried out. There is no evidence of the age of the house and what excavation was necessary to build it. There is no evidence of what activity occurred or what other structures were in place in the vicinity of the tree before the male defendant commenced work. There is a possibility that the tree was already in decline from drought or some other cause. There is no direct evidence to show that the defendants did anything to interfere with the tree or its roots at the time alleged. The only evidence is to the contrary.
67 The degree of probability that Mr El-Baysari damaged the buttress root or any other part of the tree is not so high that the contrary cannot be supported (Martin v Osborne (1936) 55 CLR 367 at 375). There is an inference or hypothesis consistent with innocence open on the evidence namely that some other person such as a previous occupier could have inadvertently or even deliberately struck the buttress root thereby inflicting the damage observed by Mr Rothery and Mr Marsden. That injury may or may not have contributed to the demise of the tree. It is for the prosecutor to exclude every reasonable hypothesis consistent with innocence. The prosecutor did not call evidence from any previous occupier or owner to exclude the alternative possibility. I ought therefore give both of the defendants the benefit of the doubt necessarily created by the alternative hypothesis (Knight v The Queen (1992) 175 CLR 495 at 503).
68 I have explained that the inference of guilt is not the only inference that can rationally be drawn from the circumstances. The evidence given for the defence is uncontradicted and is intrinsically not unworthy of belief. The prospect of a hypothetical innocent explanation is thereby increased (see for example Giles v Dodds [1947] VLR 465).
69 The allegation against Mrs El-Baysari is confined to accessorial liability. The foreshadowed failure of the prosecution’s case against Mr El-Baysari means that there can be no finding of guilt against his wife.
70 Having regard to the whole of the circumstances I have outlined I find that both defendants are entitled to a verdict of not guilty.
71 That finding makes it unnecessary to finally determine whether, in the circumstances, that as a consequence of the construction of the deck being exempt development that fact impacts upon the operation of cl 18. I do not find the defendants’ submissions in this respect appealing as cl 18 appears prima facie to operate on its own account in respect of injury to trees without interaction with the exempt development provisions of the EP&A Act and the LEP.
Costs
72 There has been no argument in relation to costs but following Latoudis v Casey (1990) 170 CLR 534 it is appropriate for the Court to exercise its discretion to order the prosecutor to pay the defendants’ costs in the circumstances where the defendants are entirely successful.
Orders
73 The formal orders that I make are:-
1) In each of the matters 50064 of 2004 and 50065 of 2004 the defendants are not guilty of the charge in the summons.
2) The summons in each case is dismissed.
3) The prosecutor is ordered to pay the defendants’ costs.
4) The exhibits may be returned.
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