Liangis Investments Pty Ltd v Conservator of Flora and Fauna (Administrative Review)

[2016] ACAT 134

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

LIANGIS INVESTMENTS PTY LTD v CONSERVATOR OF FLORA AND FAUNA (Administrative Review) [2016] ACAT 134

AT 20/2016

Catchwords:              ADMINISTRATIVE REVIEW – decision not to cancel registration of tree – who may apply for review of decision – is the lessee of land where the tree is located the person who holds registration?

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 ss 48, 67A

ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (No. 1)

ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (No. 2)

Legislation Act 2001 ss 138, 139, 140, 145, 160

Tree Protection Act 2005 ss 41, 49, 52, 53, 54, 55, 107A, 107B

Subordinate
Legislation:               ACT Civil and Administrative Tribunal Regulation 2009 s 7

Cases cited:               Casey v Alcock [2009] ACTCA 1

Eastman v Director of Public Prosecutions (ACT) 214 CLR 318

R v Fearnside (2009) 3 ACTLR 25

Tribunal:                   Presidential Member M-T Daniel

Date of Orders:  25 November 2016                 

Date of Reasons for Decision:         1 December 2016

AUSTRALIAN CAPITAL TERRITORY             )

CIVIL & ADMINISTRATIVE TRIBUNAL          )  AT 20/2016

BETWEEN:

LIANGIS INVESTMENTS PTY LTD

Applicant

AND:

CONSERVATOR OF FLORA AND FAUNA

Respondent

TRIBUNAL:   Presidential Member M-T Daniel

DATE:25 November 2016

ORDER

The Tribunal orders that:

1.The application for review filed 27 April 2016 is dismissed.

2.The application for costs is dismissed.

…………Signed…………..

Presidential Member M-T Daniel

REASONS FOR DECISION

1.Persons familiar with Manuka shops would be aware of the trees that grow in that vicinity. This case is about one tree in particular, a London Plane Tree (the tree) located at 15 Franklin Street. The tree is entered on the Register of Significant Trees maintained under the Tree Protection Act 2005 (Tree Act) as PTR093 Griffith.  

2.Liangis Investments Pty Ltd (the applicant) is the crown lessee of 15 Franklin Street Griffith (the land) and by virtue of that fact the owner of the tree.

3.On 2 November 2015 an application was made[1] to the Conservator of Flora and Fauna (the Conservator) to cancel the registration of the tree. On 31 March 2016 the Conservator decided not to grant the application for cancellation.

[1] It seems this application may have been made by a third party at the request of the applicant

4.The applicant then applied to the Tribunal for review of the Conservator’s decision.

5.The Conservator has sought orders dismissing the application for review, on the basis that the applicant is not eligible under the legislation to file an application for review of the cancellation decision.

6.The Conservator’s application was heard on 27 June 2016. Both parties were represented by Counsel, who made oral submissions at the hearing. Written submissions were filed in advance of the hearing. At the conclusion of the hearing I reserved my decision.

7.On 25 November 2016, I made orders dismissing the application for review on the basis that the applicant was not entitled to bring that application, and also dismissing an application for costs. The following are my reasons for those decisions.

Who can apply for review of the decision not to cancel registration?

8.Section 107B and Schedule 1 of the Tree Act provide that a ‘person who holds or held registration’ is eligible to apply to the Tribunal for review of a decision to cancel, or refuse to cancel, registration of a tree.

9.The phrase ‘person who holds or held registration’ (the phrase) is not defined in the Tree Act. Consequently some interpretation is required to determine if the applicant falls within the meaning of the words.

10.The Conservator’s argument, in a nutshell, is that the ‘person who holds registration’ is the person who originally nominated the tree for registration (the nominator), and only the nominator can apply for review of a later decision to cancel, or not to cancel, registration of the tree. Counsel for the Conservator submitted that this meaning was clear from the words used in the phrase, and the surrounding provisions of the Tree Act, and that no further interpretive steps were required.

11.The applicant argued that the phrase ‘person who holds or held registration’ should be interpreted to mean the lessee of the land on which the tree is located (the lessee). Counsel for the applicant submitted that the meaning of the phrase was not obvious from the words used in the Schedule or surrounding context, but that this was the interpretation that would best achieve the purpose of the legislation, and would make sense given the other provisions of the Tree Act. Counsel for the applicant submitted that the interpretation urged by the Conservator would result in an absurd and nonsensical outcome.

12.Counsel were in agreement that the ordinary meaning of the words used in the phrase were the starting point, that these must be read in the context of the Tree Act[2], and that an interpretation promoting the purpose of the Tree Act must be preferred.[3]

What is the ordinary meaning of the words?

[2] Section 140 of the Legislation Act provides that in working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole

[3] Section 139 of the Legislation Act provides that in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. This applies whether or not the purpose is expressly stated in the Act

13.The ordinary meaning of the word ‘person’ according to the Macquarie Dictionary is: ‘a human being, whether man, woman or child’ or ‘a human being, as distinguished from an animal or a thing’. At law, the word ‘person’ also includes legal persons such as corporations. Section 160(1) of the Legislation Act 2001 (Legislation Act) provides that “in an Act or statutory instrument, a reference to a person generally includes a reference to a corporation as well as an individual.”

14.It must also be kept in mind that section 145 of the Legislation Act provides that references to the singular include the plural, and vice versa. That means that the word ‘person’ could also mean ‘persons’.

15.The word ‘registration’ in the context in which it appears clearly refers to registration in the register of trees.

16.Dispute in this matter centred on the words ‘holds or held’.

17.What is the ordinary meaning of the word ‘hold’? It is an old word, derived from middle English. The Macquarie Dictionary, at the time of the hearing, listed 60 different meanings or usages.

18.The first-listed meaning of the word ‘hold’ is ‘to have or keep in the hand’.  The obvious interpretation, and that which seemed most natural, would be that the tree ‘holds’ registration. One talks about the tree ‘having’ registration, not the lessee or the nominator. This interpretation cannot be adopted, however, because of the requirement that the holder of registration be a ‘person’.

19.Notwithstanding the inclusive definition of the word ‘person’ noted above, it cannot be suggested that a tree is a ‘person’ either for the ordinary or legal meaning of the word ‘person’.

20.This interpretation of the phrase would make the right to merits review in practical terms, unexercisable. Given that there is a clear provision for merits review, I turn to consider other interpretations of the phrase which might be available, if less obvious.

21.Counsel for the applicant pointed to those meanings of the word ‘hold’ with the flavour of ownership such as ‘to have’ and ‘to have the ownership or use of’ as supporting an interpretation that the lessee of the land was the person who holds registration. This use of the word blurs the distinction between tree and registration. The lessee ‘has ownership’ of the tree. The lessee does not ‘have’ registration, nor does the lessee ‘have ownership or use’ of registration.

22.Counsel for the Conservator relied upon those meanings whereby, it was submitted, something was gained, such as ‘to keep (territory, etc.) forcibly, as against an adversary’. Counsel submitted these meanings supported an interpretation that the nominator, being the person who had obtained registration through their efforts, was the person who holds registration.  I do not consider that the nominator falls within these concepts. The person who ‘keeps’ or ‘maintains’ registration would be the Conservator, as the person who has control of the register and the obligation to maintain it.

23.Both of the interpretations urged by the parties’ Counsel involve a use of the word ‘hold’ which is unfamiliar to the Tribunal, does not seem natural, and is not of the tenor of those meanings listed in the Macquarie dictionary.

Does either interpretation better promote the purpose of the Tree Act?

24.The Tree Act by its long title is “an Act for the protection of trees, and for other purposes”. The objects of the Act as expressed in section 3 are largely directed at the protection of individual trees and urban forest values.

25.Counsel for the Conservator submitted that interpreting the ‘person who holds or held registration’ to be the nominator would best achieve the purpose of the Tree Act. Certainly this interpretation would promote the protection of trees. This is because the only person able to seek review of a decision not to cancel the registration of a tree would, in most cases, be the person least likely to seek that registration be cancelled.  

26.Counsel for the applicant submitted that the purpose of the Tree Act was best achieved by an interpretation that the lessee was the holder of registration, and pointed to the surrounding provisions of the Tree Act as being facilitated by this interpretation.

What is the surrounding context of the Tree Act?

27.Each Counsel referred the Tribunal to the provisions of the Tree Act as a context which supported their preferred interpretation of the phrase. It is useful to set out those provisions at least in summary form.

28.Part 6 of the Tree Act provides for the establishment of the tree register which is maintained by the Conservator. The tree register must include, for a registered tree:

(a)the tree management plan;

(b)a photograph or image of the tree;

(c)the tree’s location;

(d)the tree’s botanical name and any relevant horticultural information;

(e)a description of the protection zone for the tree; and

(f)a statement about the tree’s significance.[4]

[4] Section 41(2)(b) and section 54(2)

29.The tree register may contain other information the Conservator considers is relevant.[5]

[5] Section 41(3)

30.Part 7 of the Tree Act deals with the process for registration of trees, and cancellation of registration.

31.Anyone can nominate a tree for registration. The Conservator is required first to consider provisional registration. For a tree that is located on private land, notice of provisional registration must be given to:

(a)the nominator;

(b)the lessee of the land that includes all or part of the protection zone for the tree;

(c)if the tree may have heritage significance – the heritage council; and

(d)the public, by public notice.[6]

[6] Section 49

32.After engaging in a process of consultation and considering any comments received, the Conservator may register the tree if satisfied the tree meets the registration criteria.[7] Written notice of the registration decision is sent to:

(a)the nominator;

(b)the lessee;

(c)adjoining lessees[8] if their land is within 50 metres of the tree;

(d)anyone who provided written comments about the proposed registration (and a return address);

(e)the heritage council, if it gave advice on the proposed registration; and

(f)the public, by public notice.[9]

[7] Section 52

[8] Or the land management agency if the adjoining land is public land

[9] Section 53

33.As with nomination for entry on to the register, anyone may apply to cancel registration of a registered tree.[10] Before considering an application for cancellation of registration, the Conservator must give written notice of the proposed cancellation to:

(a)the person who proposed cancellation;

(b)the lessee of the land where the tree is located;

(c)the lessee[11] of adjoining land that is within 50 metres of the tree;

(d)the heritage council, if the tree register indicates the tree has heritage significance; and

(e)the public, by public notice.[12]

[10] Section 55

[11] or land management agency if it is public land

[12] Section 56

34.After a process of consultation, and due consideration, the Conservator decides whether or not to cancel the registration of the tree.[13] Written notice of that decision must be given to:

(a)the person who proposed cancellation;

(b)the lessee of the land where the tree is located;

(c)the lessee[14] of adjoining land that is within 50 metres of the tree;

(d)anyone who provided written comments about the proposed cancellation (and a return address);

(e)the heritage council, if the heritage council gave advice on the proposed cancellation; and

(f)the public, by public notice.[15]

[13] Section 58

[14] or land management agency if it is public land

[15] Section 59

35.As noted earlier, Section 107B and Schedule 1 of the Tree Act together provide that a ‘person who holds or held registration’ is eligible to apply to the tribunal for review of a decision to cancel, or refuse to cancel, registration of a tree. Section 107A provides that the Conservator must give a ‘reviewable decision notice’ to the entity named in Schedule 1.

36.The note to section 107A of the Tree Act points out that the requirements for a reviewable decision notice are prescribed under the ACAT Act. Regulation 7 of the ACT Civil and Administrative Tribunal Regulation 2009 (the Regulation) prescribes that a reviewable decision notice must state, among other things, that the person may apply to the ACAT for review of the decision.

Does the Tree Act itself provide support for one or other interpretation?

37.Counsel for the Conservator submitted that it was clear from the context of the Tree Act that the nominator, as the person who had sought registration of the tree and been successful, was the ‘person who holds or held registration’.

38.Counsel for the applicant pointed out that the scheme of the Tree Act recognised the importance of the lessee of the land on which the tree is located, as the owner of the tree and the person with responsibilities in relation to the protection of the tree. Counsel submitted that it would be consistent with this scheme, and simply make sense, that the lessee be the person entitled to apply for review of a decision to cancel, or not cancel, registration of the tree.

39.In relation to the Conservator’s proposed interpretation, Counsel for the applicant pointed out that from the point of provisional registration, the nominator has no specified role in relation to the registration of the tree. It was submitted that nothing is given to or conferred on a nominator as a consequence of the nomination. The nominator is not required to be notified of an application for cancellation, except as a member of the public. The nominator is not required to be notified of the decision in relation to cancellation, except as a member of the public. Counsel for the applicant submitted that the interpretation adopted had to make sense of the Tree Act as a whole, and it would be absurd that the right of review would vest in a person who had no formal role in the process leading to the decision.

40.Against this argument, Counsel for the Conservator pointed out that the nominator, as the ‘person who holds registration’ would necessarily be notified of the reviewable decision in accordance with Section 107A of the Tree Act. This is a circular or bootstraps argument and is not persuasive.

41.It is worth noting in this regard that the details of the nominator are not recorded in the register. There is no requirement that the nominator keep the Conservator advised of their current contact details, although elsewhere the Tree Act places some emphasis on providing contact details. It would seem odd if the Conservator is obliged to give a reviewable decision notice to a nominator, potentially many years after the original registration decision, without the Tree Act also requiring the nominator to provide up to date contact details.

42.A further impracticality in adopting the Conservator’s interpretation, which I raised with Counsel at the hearing, is that in many cases the nominator will be a human being and therefore of significantly shorter life span than the registered tree. The registered tree may live for hundreds of years, and a decision about cancellation may need to be made even centuries after the original nomination. It would be strange to find that the legislation vested the right to review a cancellation decision in a person who is long dead.

43.In contrast the tree register records the details of the land on which the tree is located. The land will always have a registered owner or relevant land management agency, able to be contacted and available to exercise the right of review of a cancellation decision. In the context of these provisions, Counsel for the applicant urged that an interpretation which grants the lessee a right to apply for review of a cancellation decision makes sense, while the interpretation that the right of review is only exercisable by the nominator produces an absurd and unreasonable outcome.

44.Having considered the surrounding provisions of the Tree Act, I do not agree with the Conservator’s submission that it is obvious from the Tree Act that the nominator is the person who holds registration. On the contrary, I consider that the interpretation urged by the Conservator is counterintuitive and produces an absurd and unreasonable result.

45.I agree with the applicant’s submission that the lessor being considered to be the person who holds registration would produce a more practical and sensible result. However, it must be noted that the surrounding provisions of the Tree Act do not expressly, or by necessary implication, lead to the conclusion that the ‘person who holds or held registration’ is the lessee rather than any other person or persons.

Extrinsic aids to interpretation

46.Counsel for the Conservator submitted that there was no ambiguity or uncertainty in the meaning of the phrase which required recourse to extrinsic materials. Counsel for the applicant submitted that the meaning of the phrase was on its face unclear, and that it was entirely appropriate for the Tribunal to consider extrinsic materials.  

47.I do not accept the submissions of Counsel for the Conservator as to the approach to statutory interpretation to be taken generally, or in this case specifically. The combined effect of sections 138, 141 and 142 of the Legislation Act mean there is no necessity to find ambiguity, manifest absurdity or unreasonableness on the face of the legislation, before turning to the purpose of the legislation, or extrinsic material, to assist in finding meaning.[16] In any event, I am satisfied that the phrase ‘person who holds or held registration’ is in this legislation so unclear as to its meaning that consideration of a broader range of information is warranted.

[16] R v Fearnside (2009) 165 ACTR 22, Casey v Alcock [2009] ACTCA 1

48.Counsel for the applicant pointed out that the review provisions of the Tree Act were amended in 2008 upon the creation of the tribunal, prior to which there were extensive rights for any person whose interests were affected by a cancellation decision to apply for review of the decision. The reviewable decisions were set out in the Tree Act, and the Administrative Appeals Tribunal Act 1989 (AAT Act) required that a reviewable decision notice be sent to each person whose interests were affected by the reviewable decision. The AAT Act then provided that a person whose interests were affected by a reviewable decision could apply for review.[17]

[17] Section 67A of the ACAT Act still requires a reviewable decision notice to be given to any person whose interests are affected by the decision, advising them that they may apply to the ACAT for review of the decision. This is so even though only a person named in the relevant authorising law as eligible to apply is entitled to make such application

49.In anticipation of commencement of the tribunal in 2009, the task of updating the authorising laws was undertaken. This lead to two massive pieces of legislation, the ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (No. 1) and the ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (No. 2) (the first and second amendment Acts). It was the second amendment Act which amended the Tree Act review provisions to their current form.

50.The explanatory statement to the second amendment Act, and the second reading speeches, gave no indication that the scope of rights to seek merits review of a cancellation decision would be changed.

51.At the hearing, I queried of Counsel for the parties whether the drafting might simply be a mistake of the ‘cut and paste’ variety. It seemed to me that the terminology used was more appropriate for a registration scheme where the person who applies is themselves granted registration, rather than a registration scheme where a person applies for an object or thing to be registered.[18] Given the sheer scale of the first and second amendment Acts, running to a combined 691 pages, it would not be surprising to find an accidental slip. I raised with Counsel that in one case the Tribunal had, with the agreement of the parties, been able to disregard a typographical error in a review provision, where it was clear that such a drafting error had occurred.[19] I queried whether this legislation demonstrated a typographical error of a more modern variety. In the end it was not necessary to explore the extent to which a ‘cut and paste’ error can be considered to be merely ‘typographical’, as the Conservator did not consider that there was any drafting error involved in this case.

[18] The provisions for review for the Heritage Act, which sets up a scheme for nomination and registration of objects, were dealt with in the first Amendment Act in a markedly different fashion to that used for the Tree Act

[19] Where the reference in the Firearms Act to a reviewable decision used the wrong section number

52.Counsel for the applicant submitted that reference to the extrinsic material indicated that there was almost certainly a mistake made in relation to this legislation, and that in order that the right of review be given some operative effect, and an effect which was practical and sensible, the interpretation urged by the applicant should be adopted.

53.Counsel for the Conservator submitted that notwithstanding the lack of acknowledgement in the explanatory statement of any change to the scope of review rights, the change was intended.

54.It is difficult to accept that substantial changes to review rights would be made without any comment in the explanatory statement. However, the Conservator as the entity administering the register and with a policy role in relation to the Tree Act is well placed to know what was intended, and to provide extrinsic information on the proposed operation of the 2008 amendments. At the conclusion of the hearing, I suggested the Conservator might be aware of documents contemporaneous to the 2008 amendments, be they internal or external reviews or reports, drafting instructions or briefs, which could shed light on the ‘mischief’ being addressed or the intended scope or operation of the amended review provisions.

55.Counsel for the Conservator did not agree that there was any need to refer to extrinsic material, and raised concern that documents such as drafting instructions would in any event be privileged. Nonetheless I granted leave for the Conservator to file the contemplated documents after the hearing. In the event, no such documents were filed.

Conclusion – who holds or held registration?

56.In the ordinary meaning and usage of the term, it is the tree that ‘holds’ registration. The tree is not, however, a ‘person’ and so it is necessary to find a different meaning for the phrase ‘person who holds or held registration’ if the right to merits review is to be utilised. No guidance as to meaning is discernable from the other provisions of the Tree Act. There is no assistance in finding a meaning to be gained from the extrinsic material. Yet a right to merits review has been provided, and the Tribunal must, if it is open, adopt an interpretation which gives the review provision some area of operation.

57.The parties have provided two competing interpretations.

58.The interpretation urged by the Conservator is absurd and impractical. There is no support for it in the Tree Act or in the extrinsic material to which the Tribunal was taken. Most importantly, as noted at paragraph 22 I do not consider that the phrase ‘person who holds or held registration’ is open to bearing the meaning of ‘the nominator’.

59.As submitted by Counsel for the applicant, it would make sense, given the other provisions of the Tree Act, for the lessor to have a right to apply for review of a cancellation decision. It was said that the lessee of the land has the greater interest, and in many cases that may be true. It is possible that the legislature had no intention to remove the rights of review previously available, and the current situation has come about as a result of a drafting error in the passage of a very large bundle of amending legislation.

60.Nonetheless, I do not consider the words ‘person who holds or held registration’ are open to bearing the meaning of ‘the lessee of the land on which the tree is located.’

61.The introduction of the phrase ‘the person who holds or held registration’ into the review provision indicates some intention by the legislature to provide greater clarity to the ‘person or persons’ able to apply for review. It is not for the Tribunal, under the guise of interpretation, to make what is effectively a policy decision as to the class of persons now eligible to apply for review of a cancellation decision, or to determine whether the lessee falls within that class.

62.The defect in the review provisions, which results in there being no exercisable right of merits review in relation to a cancellation decision, can only be rectified by the legislature, not by a process of interpretation.

Ancillary matters

63.There are two ancillary matters which should be noted.

64.First, some issue was made during the hearing, subsequently at a directions hearing in a related matter, and then clarified by correspondence to the Tribunal, about whether or not there was the facility for the applicant to seek removal of the tree or approval to undertake a tree damaging activity, without the registration of the tree being cancelled. As there is no guidance in the interpretive task before the Tribunal to be gained from that question, it has not formed part of the reasons for this decision.

65.Secondly, although no further extrinsic material was filed by the Conservator after the hearing pursuant to the leave granted, the Conservator did file ten pages of submissions covering the issues addressed at the hearing, with attached extracts of legislation. The applicant then filed a further ten pages of submissions in reply, including an application for costs of preparing those submissions. Counsel for the applicant submitted that the Conservator had contravened an order of the Tribunal in filing submissions contrary to the leave granted.

66.Counsel for the Conservator then filed submissions in relation to the costs application. Counsel for the Conservator submitted that what had been filed was within the terms of the leave granted, and in any event was filed only to assist the Tribunal in reaching the correct and preferable decision.

67.It is well established that once a hearing has been conducted, there is an end to both written and oral argument.[20] It is for this reason that, if there is an outstanding point to be addressed, leave is formally granted to file further submissions or evidence limited to that point.

[20] Eastman v Director of Public Prosecutions (ACT) 214 CLR 318

68.The further submissions filed by the Conservator were not within the spirit or letter of the leave that was granted. Accordingly they have not been considered in reaching this decision. It follows that I have not considered the further submissions filed on behalf of the applicant.

69.Once the further submissions of the Conservator had been filed, it would have been appropriate for the applicant’s solicitor to write to the Tribunal, advising that in their view the submissions had been filed without leave and requesting leave to reply, if the submissions were to be taken into account. While this was done, it was not necessary for the applicant to at the same time (and in the same document) provide these submissions in reply. The expense of preparing those submissions was unnecessarily incurred and unrecoverable if costs are to be awarded.

70.Counsel for the applicant sought costs under section 48(2)(c) of the ACAT Act which provides the Tribunal may order costs if a party contravenes an order of the Tribunal.

71.Filing submissions after a hearing without leave does not amount to a contravention of an order of the Tribunal, and consequently it is not open to the Tribunal to make an order for costs against the Conservator in this regard. Accordingly, I dismissed the application for costs.

………………………………..

Presidential Member M-T Daniel

HEARING DETAILS

FILE NUMBER:	AT 20/2016
PARTIES, APPLICANT:	Liangis Investments Pty Limited
PARTIES, RESPONDENT:	Conservator of Flora and Fauna
COUNSEL APPEARING, APPLICANT	Mr Walker SC, Ms Katavic
COUNSEL APPEARING, RESPONDENT	Mr Woulfe
SOLICITORS FOR APPLICANT	Macphallamy’s Lawyers
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Presidential Member M-T Daniel
DATES OF HEARING:	27 June 2016