Liverpool City Council v Hodge

[2005] NSWLEC 170

Reported Decision: 143 LGERA 261

Land and Environment Court

of New South Wales

CITATION:

Liverpool City Council v Hodge and Anor. [2005] NSWLEC 170

PARTIES:

PROSECUTOR:
Liverpool City Council

DEFENDANTS:
Hodge and Anor.

FILE NUMBER(S):

50036, 50037 of 2004

CORAM:

Bignold J

KEY ISSUES:

Environmental Offences :- breach of Tree Preservation Order-Defendant's Motion for summary dismissal on ground that no valid tree preservation order existed at date of commission of alleged offence.

LEGISLATION CITED:

Liverpool Local Environmental Plan No. 145

DATES OF HEARING:

29/03/2005

EX TEMPORE JUDGMENT DATE:

03/29/2005

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr I Hemmings, Barrister SC
SOLICITORS
Norman Waterhouse

FIRST DEFENDANT:
Mr B McClintock SC, Mr T G Howard, Barrister
SECOND DEFENDANT:
Mr I Lloyd QC, Mr T G Howard, Barrister

SOLICITORS
FIRST DEFENDANT:
Minter Ellison
SECOND DEFENDANT:
Otto Strichter and Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

29 March 2005

50036 and 50037 of 2004 LIVERPOOL CITY COUNCIL v DONALD HODGE; VIKI HODGE

JUDGMENT

CORAM : HIS HONOUR
1 The Court has before it two charges of an offence alleged to have been committed by each of the Defendants which is framed in similar terms, but with some vital differences.
2 In the charge brought against the Defendant Viki Hodge, she is charged with the offence of having “ permitted trees protected by a Tree Preservation Order made by the Liverpool City Council pursuant to the Environmental Planning and Assessment Act 1979 to be moved, injured, and/or wilfully destroyed on land which is described as land at Heathcote Road, Pleasure Point, without first obtaining consent” : Proceeding No 50037 of 2004.
3 The similar charge brought against the Defendant Don Alan Hodge replicates the charge brought against the other Defendant (his wife) except that instead of being charged with having permitted the trees to be removed etc, the charge against the Defendant Don Alan Hodge is that “ he caused or permitted ” the trees etc, to be removed etc: Proceeding No 50036 of 2004.
4 The Defendants have entered pleas of not guilty to each of the charges and by consent the charges were heard together.
5 Senior Counsel separately appearing for each of the Defendants indicated at the opening of the trial that they would move for the summary dismissal of each of the charges upon the grounds that no offence known to the law could be established, by the evidence filed by the Prosecutor in the light of the particulars of each offence that had recently been provided by the Prosecutor. In these circumstances, where Prosecuting Counsel had been put on notice a little earlier of each of the Defendant’s position, he was invited to open the case, but briefly and relevantly focussing on the matter which formed the sole foundation and gravamen for what was to become the Defendants’ submission, that the charges ought be summarily dismissed—namely that there was not in existence a valid Tree Preservation Order as alleged in each of the charges and that, accordingly, absent a valid Tree Preservation Order, no relevant offences had been charged against each of the Defendants.
6 Thereafter, Prosecuting Counsel obliged by opening the case and confining the evidence to that concerning the existence or non-existence of a relevant Tree Preservation Order. In that respect, the evidence tendered is that contained in the affidavit sworn 29 March 2005 by Felice D’Agostino, the solicitor in the employ of the instructing Solicitor for the Prosecutor. That evidence which is accepted by the Defendants commences with the coming into existence on 21 November 1986 of Liverpool Local Environmental Plan No 145. The express aim of that Plan (cl 2) was:
This plan aims to authorise the making of a Tree Preservation Order in relation to land to which this plan applies.
7 Clause 3 of that Plan specifies the land to which it applies and does so by reference to the land to which various specified environmental planning instruments apply.
8 The content of Local Environmental Plan 145 was to amend a number of specified environmental planning instruments applying to various lands within the City of Liverpool either by substituting a standard clause dealing with preservation of trees for the stipulated existing provisions or in the case of other environmental planning instruments applying to various lands within the City of Liverpool, to insert for the first time in those instruments that same standard provision. It is to be noted that LEP 145 operates entirely as an “ amending ” local environmental plan.
9 In the present case it is an agreed fact that the land, the subject of the two charges, was relevantly at the date of the alleged offences (ie 1st November 2003) governed by the provisions of Interim Development Order No 74 City of Liverpool (IDO 74) which was originally made by the Minister for Planning and Environment in April 1978, and qualified as a “ deemed environmental planning instrument ” under the transitional and savings provisions of the Environmental Planning and Assessment Act 1979 and its cognate legislation in 1979 and has continued in force even to the present time.
10 IDO 74 is one of the instruments amended by Local Environmental Plan No 145 which substituted for the then existing cl 20 the new cl 20 which adopts wholly the provisions of Part B of Local Environmental Plan 145 (ie what I have earlier described as “ the standard provision ” dealing with tree preservation). That amendment is textually found in the consolidated copy of the IDO 74 (which is annexed to the affidavit) and it expresses in a conventional form the enabling power for the making of a tree preservation order.
11 The concept of a tree preservation order is well known in town planning legislation and practice in this State, and existed well before the coming into force of the Environmental Planning and Assessment Act 1979 . It can be traced back to cl 40 of the County of Cumberland Planning Scheme Ordinance 1951. However, with the coming into force of that Act enabling provisions were contained in cl 8 of the Model Provisions (adopted by s 33 of that Act) for the making of a tree preservation order and it is commonplace for environmental planning instruments which have been made under the enabling provisions of the Environmental Planning and Assessment Act since 1980 to adopt those Model Provisions. However, in the present case, the Model Provisions in terms were not adopted but instead, as I have already indicated, a specific enabling provision in respect of tree preservation was inserted into IDO 74 by way of a new cl 20 .
12 The language of cl 20 of IDO 74, as I say, is familiar and is fairly conventional. It is necessary that I quote some of the provisions (there are in all seven subclauses). There is no need to refer to them all. Subclause (1) clearly confers a power for a specific purpose upon the Council by providing:
Where it appears to the Council that it is expedient for the purpose of securing amenity or preserving existing amenity it may for that purpose by resolution make an order (hereinafter referred to as a tree preservation order ) and may be like resolution rescind or vary such in such order.
13 There is no dispute in the competing arguments that that power is an enabling power available to a Council in a given case.
14 Subclause (2) is important in the present case and needs to be quoted. It states:
A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, and the wilful destruction of any tree or trees specified in the order except with the consent of the Council. Any such consent may given subject to such conditions as the Council thinks fit.
15 Subclause (3) is also important and needs to be quoted:
A tree preservation order may relate to any tree or trees or to any specified class, type or descriptions of trees on land described particularly or generally by reference to the City of Liverpool or any divisions thereof.
16 Subclause (4) contains a requirement for the publication in a newspaper circulating in the area in which the land the subject of the tree preservation order is situated of notice of the making of the tree preservation order.
17 Subclause (5) provides that:
A person who contravenes or causes or permits to be contravened a tree preservation order shall be guilty of an offence.
18 Subclause (6) provides for a statutory defence “ in any proceedings under this clause” , the defence being that the tree cut down or removed, etc. “ was dying or dead or had become dangerous” .
19 The Prosecutor relies upon the tree preservation order that it claims to have come into existence by virtue of a resolution passed by the Council on 16 December 1986. In the report of the City Planner to the Council that was submitted on 12 December 1986, reference is made to the fact that Local Environmental Plan No 145 had come into force “incorporating standardised Tree Preservation Order provisions for land within the City of Liverpool.
20 The Report states in relation to LEP 145 that subclauses (1) and (4) “ only require Council to resolve to make the Tree Preservation Order and give formal notice of this decision in a local newspaper, the need for publication of the Order in the Government Gazette no longer applies. ”
21 The report goes on to recommend that “ the Council resolve to make a Tree Preservation Order for all land within the City of Liverpool in accordance with the provisions of Liverpool Local Environmental Plans Nos 80, 88, 103, 108 and 145 ”. (No point has been taken in the argument, and accordingly I mention it only in passing, that the tree preservation order in the present case was recommended to be made pursuant to, among other things, “ Local Environmental Plan No 145 ” as opposed to IDO 74. Nor was any argument directed to the fact that whereas IDO 74 applies to specified lands within the City of Liverpool cl 20(3) refers to “ land described….by reference to the City of Liverpool or any divisions ”.)
22 The record of the Council’s resolution repeats (as is familiar for resolutions passed by Councils at this period of time) the City Planner’s report including the recommendation contained therein, and the resolution that is recorded as having been carried by the Councillors’ vote is that “ the recommendation of the City Planner be adopted” . (It is to be recalled that that recommendation was that “ the Council resolve to make a Tree Preservation Order for all land within the City of Liverpool in accordance with the provisions of the Liverpool Local Environmental Plans 80, 88, 103, 108 and 145” .)
23 That being the only source of Tree Preservation Order that is relied upon by the Prosecutor in support of the present charges, Senior Counsel for each Defendant moved the Court for the summary dismissal of each of the charges upon the principal basis that no relevant Tree Preservation Order, necessary to found the offences as charged, had been established, and in particular that the Tree Preservation Order relied upon by the Council was not in fact or in law, a Tree Preservation Order such as might have been made pursuant to cl 20 of IDO 74 .
24 As was pointed out in the course of argument, what the Council contended to be a Tree Preservation Order (namely the product and result of the resolution that it passed on 16 December 1986 in the terms that I have recited) is not in the form of a conventional Tree Preservation Order that has been known in this State for the last 50 years. The conventional form of a Tree Preservation Order made pursuant to a power expressed in the same or similar terms to the enabling power of cl 20 of IDO 74 has been the creation of a separate instrument or document bearing the name “ Tree Preservation Order” for a given Council area, and then spelling out in terms the full ambit of the Tree Preservation Order in terms of describing or specifying the land or trees to which it is to apply and specifying the relevant prohibitions on certain actions that might be undertaken in relation to such trees (eg cutting, topping, lopping, removing etc.) However, the fact that what is represented by the Prosecutor as a Tree Preservation Order is not expressed in a conventional form, is not of course, in itself, a reason to decide summarily that what is represented as the Tree Preservation Order is not a Tree Preservation Order. Rather, the adjudication on the dispute between the parties, as fully argued today, requires a decision as to the nature of the enabling power conferred upon the Council by cl 20 of IDO 74 and a decision (based on the evidence that I have recited) as to whether that power so conferred has been exercised in such a way as to take up the available power to make a Tree Preservation Order.
25 The arguments advanced by Senior Counsel for the Defendants were to the effect that the relevant Council resolution was not itself a Tree Preservation Order because it did not, as required by the enabling power, prohibit any particular activity in relation to any particular or specified tree. Nor did it contain any provision in relation to the requirement for consent of the Council to be obtained. In fact, the Council’s resolution claimed to constitute the Tree Preservation Order was wholly lacking in the content that is authorised by cl 20(2) to be included in a tree preservation order and did not take up or engage any of the powers contained in that clause. In short, the submissions were to the effect that the Council resolution to make a Tree Preservation Order in the terms I have set forth simply failed (and totally failed) to exercise the available power and the result of the purported exercise of power (if it had intended to create a tree preservation order) had entirely miscarried in the sense that the result was not the creation of a Tree Preservation Order containing provisions prohibiting cutting down, ringbarking, removing, injuring any tree or trees specified in the order except with the consent of the Council. In short, the Defence submission was that the evidence disclosed no more than the existence of a Council resolution to make a tree preservation order but that resolution had not been carried into effect by the making of a tree preservation order.
26 Prosecuting Counsel advanced argument in reply seeking to interpret the enabling power in a manner which would result in an efficacious exercise of power simply by dint of the Council resolving to make a Tree Preservation Order for all land within the City of Liverpool, and that as a result of the passing of the Council’s resolution, a Tree Preservation Order thereby sprang into existence and relevantly contained prohibitions and specifications of trees and activities the subject of control and requiring development consent, which prohibitions were capable of being contravened.
27 In my respectful judgment, valiant though the Prosecutor’s argument was, it did not proffer a meaningful or realistic interpretation of the enabling clause. In my view (and as I pointed out in the course of argument) it is beyond doubt that cl 20(1) confers an enabling power upon the Council to make a Tree Preservation Order, but it is also beyond doubt that a Tree Preservation Order gains its meaning, content and operation only by dint of the provisions that are made pursuant to subclauses (2) and (3) as part and parcel of that creation, and in the present case, for the reasons that I have given, it is clear that what purports to be a Tree Preservation Order is wholly devoid of any meaningful content which would be required to prescribe what relevant controls are applicable, what trees are governed by the order, and what conduct is necessarily proscribed. For a provision that either creates or founds a criminal liability to be so devoid of substance—legal meaningful substance—at once exposes the fallacy of the Council’s argument and the untenability of its proffered construction of cl 20 of IDO 74.
28 For the reasons given, there is, in my judgment, no relevant Tree Preservation Order that came into existence as a result of the Council resolution passed on 16 December 1986 and there has been no suggestion in the evidence, or in submission, that there is any alternative source for the existence of such a Tree Preservation Order. In those circumstances, the charges which each depend upon “ a contravention of the Tree Preservation Order” , are lacking in an essential factual element, namely the existence of a Tree Preservation Order containing the relevant controls (contravention of which is said to constitute the offences charged).
29 Although Senior Counsel for the Defendants advanced alternative and subsidiary arguments upon the basis that the Court might find in favour of the Prosecutor that the purported Tree Preservation Order was in fact and in law a valid Tree Preservation Order, since I have concluded that not to be the case, I do not think it necessary or essential that I adjudicate upon those subsidiary arguments (which were predicated upon the existence of a relevant Tree Preservation Order, if contrary to the Defence submissions I had held the result or product of the Council’s resolution of 16 December 1986 to be a Tree Preservation Order).
30 In these circumstances, Defence Counsel having asked me to summarily dismiss each charge, I am satisfied that those submissions must be upheld. Accordingly I would, upon the objection raised by each of the Defendants to each of the charges brought against them, uphold the objection and summarily dismiss each summons.