Parks and Playgrounds Movement Inc v Newcastle City Council - [2010] NSWLEC 231

No judgment structure available for this case.

Reported Decision: 179 LGERA 346

Land and Environment Court

of New South Wales

CITATION: Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231

PARTIES:
APPLICANT:
Parks and Playgrounds Movement Inc
RESPONDENT:
Newcastle City Council

FILE NUMBER(S): 40745 of 2010

CORAM: Biscoe J

KEY ISSUES: JUDICIAL REVIEW :- power of roads authority under s 88 Roads Act 1993 to remove tree on or overhanging a public road, despite any other Act or law to the contrary, if, in its opinion, it is necessary to do so for the purpose of removing a traffic hazard – whether s 88 subject to jurisdictional fact or facts – whether tree “on or overhanging” a public road where, or to extent that, some roots and branches extend into or overhang adjoining land – whether s 88 subject to any development consent requirement under s 76A in Pt 4 Environmental Planning and Assessment Act 1979 or requirements of ss 111 and 112 in Pt 5 - meaning of “any other Act or law to the contrary” – whether, if subject to s 76A, development consent required under an environmental planning instrument – whether, if subject to ss 111 and 112 in Pt 5, their requirements are satisfied - power of council to remove trees on a public road that is unzoned land under cl 98(2) State Environmental Planning Policy (Infrastructure) 2007

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 76A, 111, 112, Pts 4 and 5
Interpretation Act 1987, ss 33, 34
Land and Environment Court Act 1979, s 20
Land and Environment Court Rules 2007, r 4.2(1)
Local Government Act 1993
National Parks and Wildlife Act 1974
Newcastle City Centre Local Environmental Plan 2008, cl 14
Protection of the Environment Operations Act 1997, s 253
Road Management Act 2004 (Vic), cl 10, Sch 3
Roads Act 1993, ss 88, 138
State Environmental Planning Policy (Infrastructure) 2007, cl 98(2)
Threatened Species Conservation Act 1995
Uniform Civil Procedure Rules 2005, r 42.1

CASES CITED: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27
Astley v Austrust Ltd [1999] HCA 6, 197 CLR 1
Attorney-General (Cth) v Oates [1999] HCA 35, 198 CLR 162
Butler v Attorney-General (Vic) (1961) 106 CLR 268
Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50
Canal Rocks Pty Ltd v Shire of Busselton [2009] WASCA 35, 165 LGERA 242
Capricornia Prospecting Pty Limited v Donnelly [2002] NSWCA 254
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59, 173 LGERA 280
Catlow v Accident Compensation Commission [1989] HCA 43, 167 CLR 543
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263
Eddy Lau Constructions Pty Limited v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 754
Ferdinands v Commissioner for Public Employment [2006] HCA 5, 225 CLR 130
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Garnett v Bradley (1878) 3 App Cas 944
Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43, 236 CLR 120
Goodwin v Phillips (1908) 7 CLR 1
Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1987) 7 NSWLR 353
Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380
Hill Top Residents Action Group Inc v Minister for Planning (No 3) [2010] NSWLEC 155
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59, 220 CLR 472
In Re Bland Brothers and the Council of the Borough of Inglewood (No 2) [1920] VLR 522
Kirk v Industrial Relations Commission of NSW [2010] HCA 1, 239 CLR 531
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Minister for Immigration and Citizenship v SZJGV [2009] HCA 40, 238 CLR 642
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20, 219 CLR 365
Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14, 218 CLR 273
Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48
Nominal Defendant v Duntroon Holdings Pty Ltd [2008] QCA 183
Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 173
Piper v Corrective Services Commission of NSW (1986) 6 NSWLR 352
Price v J F Thompson (Qld) Pty Ltd [1990] 1 Qd R 278
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355
Roads and Traffic Authority (NSW) v Ashfield Municipal Council [2005] NSWCA 234, 141 LGERA 278
Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Live-stock Corporation (No 2) (1980) 44 FLR 455
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Saraswati v the Queen (1991) 172 CLR 1
Sheehan v State Rail Authority (NSW) [2009] NSWCA 261
Shergold v Tanner [2002] HCA 19, 209 CLR 126
Sir Thomas Cecil’s Case (1597) 7 Co Rep 18b, 77 ER 440
Smith v The Queen (1994) 181 CLR 338
Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133, 67 NSWLR 256
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Transport Action Group against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196, 46 NSWLR 598
Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1
Walker v Minister for Planning [2007] NSWLEC 741, 157 LGERA 124
Wik Peoples v Queensland (1996) 187 CLR 1
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198

DATES OF HEARING: 6-8, 18 October 2010

DATE OF JUDGMENT:
11 November 2010

LEGAL REPRESENTATIVES: APPLICANT:
Mr J Ayling SC with Ms L M Byrne and Mr C Fraser, barristers
SOLICITORS
Catherine Henry Partners

RESPONDENT:
Mr A Galasso SC with Mr B Koch, barrister
SOLICITORS
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

11 November 2010

40745 of 2010

PARKS AND PLAYGROUNDS MOVEMENT INC v NEWCASTLE CITY COUNCIL

JUDGMENT

CONTENTS

Paragraphs

INTRODUCTION 1-17
BACKGROUND 18-58
THE STATUTORY REGIME 59-69
STATUTORY INTERPRETATION 70-85
SECTION 88 ROADS ACT 86-117
PART 4 EPA ACT DEVELOPMENT CONSENT 118-129
PART 5 EPA ACT 130-167
JURISDICTION 168
COSTS 169-173
ORDERS 174

INTRODUCTION

1 HIS HONOUR: The applicant, Parks and Playgrounds Movement Inc, challenges the lawfulness of Newcastle City Council’s proposed removal of 14 fig trees (Trees) on both sides of Laman Street, Newcastle, between Darby and Dawson Streets. This Court has no jurisdiction to review the merits of the decision to remove, or the removal, of the Trees.

2 The Trees are Hill’s Weeping Figs, except for one which is an unknown species. The Trees were planted in the late 1930s. Now they are nearly all around 21 metres in height. The northern side of Laman Street adjoins Civic Park. The southern side adjoins the Newcastle Art Gallery.

3 Back in 2008, the council acknowledged in a resolution that “the avenue of Hills Fig trees with its canopy, in Laman Street…is much loved and has iconic status as a streetscape feature of inner Newcastle”. Unsurprisingly, therefore, the decision to remove the Trees has opponents, including those who stand behind the applicant.

4 The decision to remove the Trees is included in the following wider resolution of the council on 17 August 2010, which was carried by a narrow majority:

5 On 14 September 2010 the council’s General Manager wrote a letter to a member of the public which the council argues evidences either an independent decision to remove the Trees – since he happened to have delegated authority which was wide enough to include authority to make such a decision – or confirmation of the council’s exercise of power under s 88 of the Roads Act 1993. The letter said: “As the roads authority for Laman Street, Council will use the power under section 88 of the Roads Act to remove the trees”. The letter quoted s 88 and continued:

Roads Act

Environmental Planning and Assessment Act

6 The council planned to start removing the Trees on 20 September 2010.

7 On 17 September 2010 I granted an interlocutory injunction restraining the council from removing or lopping the canopies of the Trees until final determination of the proceedings or further order: Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 173.

8 No declaration is claimed that the decision to remove the Trees was unlawful. Only injunctive relief is claimed in the Further Amended Summons, to prevent the council removing the Trees. The parties agree that it is not in appropriate form and that if the applicant were to succeed the parties should have an opportunity to bring in proposed orders.

9 The council now justifies the proposed removal of the Trees as an exercise of power under s 88 of the Roads Act 1993 and alternatively under cl 98(2) of State Environmental Planning Policy (Infrastructure) 2007 (ISEPP). A decision-maker may rely on any source of power available at the relevant time even if the decision-maker was previously mistaken as to the source of power: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 (CA) at 48 and 85.

10 Section 88 of the Roads Act provides:

“ 88 Tree felling

11 Clause 98(2) of ISEPP provides:

“ 98 Development other than road facilities on public roads

12 It is not in issue that the council formed the opinion referred to in s 88; that Laman Street is a public road and unzoned land; that development consent was neither sought nor granted for the removal and replacement of the Trees; and that removal and replacement of the Trees is “development” (see the definition in s 4(1) of the Environmental Planning and Assessment Act 1979 (EPA Act)). There is a question whether some of the Trees are “on or overhanging” a public road within the meaning of s 88 or “on” a public road within the meaning of cl 98(2). There is also a question whether “public authority” in cl 98(2) includes a local council. In my view, those questions should be answered in the affirmative.

13 The applicant’s written precis of its final address concludes by summarising its submissions as follows:

EPA Act

EPA

National Parks and Wildlife Act

NPW Act

14 The applicant’s pleaded contentions that the council’s decision to remove the Trees was manifestly unreasonable (Wednesbury unreasonableness) and for an improper or collateral purpose were not pressed in its closing address. Had they been pressed, I would have rejected them.

15 In summary, the council’s response is that:

(a) section 88 of the Roads Act on its proper construction is a free-standing provision which does not require development consent under s 76A in Part 4 of the EPA Act and does not have to satisfy the requirements of ss 111 and 112 in Part 5 of the EPA Act ;
(b) clause 98(2) of ISEPP expressly excludes any development consent requirement (under Part 4 of the EPA Act ); and although Part 5 applies, the requirements of ss 111 and 112 are factually satisfied;
(c) in any event, on the proper construction of the relevant environmental planning instruments, development consent under Part 4 of the EPA Act is not required.

16 The resolution of the case depends chiefly on the interpretation and reconciliation of a number of provisions of statutes and environmental planning instruments, although there are also factual issues if Part 5 of the EPA Act is engaged.

17 In my opinion, the proceedings should be dismissed for the following reasons:

(a) the council has power to remove the Trees under s 88 of the Roads Act and that power is not subject to any development consent requirement in Part 4 nor is it subject to Part 5 of the EPA Act ;
(b) alternatively, the council has power to remove the Trees under cl 98(2) of ISEPP, that power is not subject to any development consent requirement under Part 4 but is subject to Part 5;
(c) there is no requirement for development consent under Part 4 because of the terms of cl 98(2) of ISEPP;
(d) to the extent (if any) that Part 5 is relevant, no breach of the requirements of Part 5 has been established.

BACKGROUND

18 The Laman Street Civic and Cultural Precinct is bound by Queen, Darby, Hunter and Auckland Streets and is home to major civic and cultural assets including the City Hall and the Newcastle Art Gallery. The precinct offers strong connectivity to other key city centre facilities.

19 The Trees currently on either side of Laman Street and other Hill’s Fig trees were planted throughout Newcastle in the late 1930’s. Since 2000, there have been a number of failures of Hill’s Fig trees in Laman Street and other locations in Newcastle including by reason of structurally compromised root plates and major branch fractures.

20 A 2006 report to council by Dennis Marsden, arborist, titled “Investigation into Root-Plate Architecture of Hill’s Weeping Figs along Laman Street outside Newcastle Region Art Gallery” was directed to the potential impact of a proposed redevelopment of the Art Gallery on four of the Trees along the southern side of Laman Street outside the existing Gallery and possibly four or five on the opposite side of the street. Mr Marsden noted that they possibly had defective root plates similar to characteristics of Hill’s Figs in Tyrrell Street, Newcastle, which had resulted in whole-tree failure. He wrote that several of the Trees carried large branches with weak unions. He concluded that (a) the four Trees (Trees A to D) on the southern side would be at risk of large branch failure and windthrow should the building be removed and would require removal to facilitate the proposal in its current form; (b) four other Trees (E to H) on the other side of the road were likely to become prone to major branch failure and windthrow in the event that the Art Gallery and Trees A to D were removed; and (c) the Trees to the immediate east and west of Trees E to H could be retained but would require selective pruning or shortening of defective branches. The condition of Trees A to H was such that removal due to defective branch structure could become likely within 15 years should the current proposal not proceed.

21 In 2007 two Hill’s Fig trees in Laman Street were windthrown in a storm and they were removed.

22 As a result, there was a second report by Dennis Marsden to the council in July 2007 titled “Investigation into Stability of Three Hill’s Weeping Figs Along Laman Street Newcastle”. He recorded that two of the Hill’s Fig trees in Laman Street had been windthrown in a storm in June 2007 and that inadequate anchorage through impaired development of their root plates allowed for their destabilisation when under wind load. This report concerned the stability of three other Hill’s Figs in Laman Street whose root plates closely correlated with those of the two trees earlier windthrown. One of those three was found to have been destabilised by the storm and in the process of whole tree failure. A recommendation was made that it be removed; and it was removed. A second was not conclusively found to have been destabilised but was found to be at increased risk of failure due to severe crown imbalance and an increased exposure to wind loads. It was recommended that it be removed. A third was not conclusively found to have been destabilised but was recommended to be the subject of inspection for a period and if it was then found that there were no signs of movement or fractures etc, it could be concluded that it had not been destabilised. The report concluded that the earlier failure of two Hill’s Figs in the storm and the further removal of a third will fragment the Trees, opening up gaps and potentially exposing other Trees with imbalanced crowns to strong winds, increasing the risk of failure. Mr Marsden recommended that council assess adjacent Trees in light of this potentiality.

23 On 9 September 2008 the council acknowledged the much loved status of the Trees (referred to above at [3]) and resolved to replace the two trees lost in the 2007 storm with an appropriate species at the eastern end of Laman Street, near the Art Gallery (one on each side of the street).

24 A council briefing on 3 February 2009, including photographs, stated that tree reports received indicated that stability and structure is compromised in all the Trees and that the remaining life expectancy is short, and explained why some fig trees fail by reference to photos of Trees which were windthrown or whose branches had come off.

25 A council report of 19 May 2009 provided options for removing the Trees. It stated that they had been assessed as having a remaining life expectancy of between 5 and 15 years. Their proposed replacement was in accordance with council’s policy including the Newcastle Urban Forest Policy 2007. That Policy states that its purpose is to promote a holistic view of Newcastle’s green spaces and the urban forest it supports. Having noted that report, the council resolved as follows:

“Council receive an appropriately phased replacement strategy for the individual trees, including costed options that:

b Preserve the canopy cover and landscape qualities of Laman Street

c Investigate a range of risk management approaches with the view to retaining the trees for as long as practicably possible

d Notes the benefit of staggering the cost over a number of years

e Commence growing the replacement trees.”

26 The council investigated redevelopment of the Laman Street Civic Precinct including redevelopment of assets such as the Newcastle Art Gallery.

27 A third report by Dennis Marsden to the council in August 2009 was titled “Assessment of Hill’s Weeping Fig…in Civic Cultural Precinct, Laman Street…Newcastle”. He identified the Trees as 13 Hill’s Weeping Figs and one unidentified species. He found that the main structural weakness of the Trees is the root-plate, their anchoring ability. The Trees were never accorded sufficient space for the development of a radial root-plate necessary for anchoring them under all normal conditions, which had been compounded by other matters. Case-book experience with Hill’s Figs planted as street trees indicated that they begin to fail when around 70 years old. He could not state with precision how much time is remaining for the Trees. Hill’s Figs with the same type of root-plate and same planting environment as the Trees are prone to windthrow. The unknown is just when a windstorm strong enough to throw the Trees will arrive again, bearing in mind that the last windstorm was in June 2007 which threw two trees from within the group on the southern side and led to the removal of another tree from the northern side. That 2007 windstorm also threw over several Hill’s Figs in Bruce Street. Under the Safe Useful Life Expectancy (SULE) rating, he rated nine of the Trees as trees that may live for more than 15 years but considered that problems of safety are likely to manifest within 15 years. He categorised three other Trees as “Dangerous through instability or recent loss of adjacent trees”, which should be removed within five years. Another Tree was categorised as “May live for more than five years but should be removed to prevent interference with more suitable individuals or provide space for new planting”. Another Tree was categorised as “Will become dangerous after removal of other trees” on the windward side. He canvassed the tree removal option of whole of street removal and staged removals/planting. Ideally, the Trees with the shortest SULE will dictate the outcome for the entire group. The shortest SULE is: remove within 5 years. In his view, removal and replacement of the Trees as a group will secure the best long-term outcome in terms of growth, form, crown architecture and balance of the replacement trees.

28 In or around September 2009, Newcastle experienced gale force weather conditions. A Hill’s Fig tree in Swan Street failed due to a collapse of its branch system.

29 In September 2009 the council received a report by Dean Simonsen, arborist, of Treelogic Pty Ltd titled “Quantified Tree Risk Assessment Fig trees in Laman Street…Newcastle”. He noted by reference to Mr Marsden’s 2007 report that Trees requiring removal in the shorter timeframe (within 5 years) will largely dictate the removal of the remaining Trees because there is reliance by each tree in the group on the entire canopy mass to share wind loading. He agreed with Mr Marsden that the future of the Trees is limited by the likelihood of some of the Trees requiring removal soon (if not immediately) because that will result in increased and/or variable wind loads on the remaining Trees, thus increasing the probability of failure.

30 On or about 23 September 2009 the council implemented a risk abatement plan for Laman Street. The plan provided for the use of barriers and signs in the Street during times of strong winds and rain.

31 In December 2009 the council received a “Peer Review” of Mr Marsden’s August 2009 report by arborists Anna Hopwood and Andrew Simpson. From an arboricultural point of view, they agreed that whole of street removal was the most effective method to remove and replant the Trees.

32 Also in December 2009 the council received another “Peer Review” of Mr Marsden’s August 2009 report by Adrian Swain, arborist. He concluded that Mr Marsden’s report demonstrated clearly that the Trees should be removed in order to minimise the risk of failure and he supported the removal and replacement of the Trees as a whole.

33 On 15 December 2009 the council resolved as follows:

“That Council form a community design process using place making principles for the civic and cultural precinct of Laman Street.

To consider the arboricultural advice, the relevant resource and risk issues, and the full range of options available to Council and the community to address the future of these trees and make an appropriate recommendation to Council.

34 On the same date the council further resolved:

“A. The General Manager forthwith be given Council’s full support to implement whatever safety measures are deemed necessary to ensure the public safety of the Laman Street precinct, apart from removing the trees.

35 On 17 December 2009 a council officer’s memo was provided to all councillors containing a risk management plan including closing Laman Street to eastbound traffic, parking restrictions, removing seats underneath or near the Trees, and placement of warning signs.

36 On 2 February 2010 the council resolved to endorse the community design process authorised in a council officer’s report. The report said that Hill’s Figs in a number of locations across Newcastle have serious structural problems resulting from decades of above and below ground works in their vicinity; and that to manage the risks council is required to close Laman Street if winds greater then 50 km/hour are forecast, which directly impacts on access to the Library, Art Gallery and Civic Park.

37 In February 2010 the council carried out a community consultation program to develop a vision for the future of the Laman Street Civic Precinct which would inform a two-day intensive design workshop to investigate the options with independent experts as well as local residents, businesses, key shareholders and community representatives. A report to the council on that program recorded in relation to the Trees that detailed responses suggest “retention, replacement and a small number of community members recommend removal”.

38 In March 2010 GBG Australia provided the council with a report on its December 2009 subsurface investigation using ground penetrating radar to locate the roots of the Trees on the footpath and roadway in Laman Street.

39 In March 2010 the council received a report titled “Social Impact Assessment – Hills Fig Trees, Laman Street, Newcastle” prepared by Community Dimensions Pty Ltd. The report stated that key benefits of trees include social benefits impacting on physical and mental health; improved social cohesion; benefits to the population from an aesthetic, symbolic and sensory perspective; reduced temperatures; improved air quality; and reduced building energy consumption.

40 On 8 March 2010 a fourth report by Mr Marsden was provided to the council titled “Further Investigation into Root–plate Architecture of Hill’s Weeping Figs…in Civic Cultural Precinct, Laman Street…”. It referred to trenching investigations of the roots of the Trees in 2006 and again by ground penetrating radar in 2009 (referred to in GBG Australia’s March 2010 report). Mr Marsden concluded that the Trees do not have typical root-plates or root systems and that the case book experience with the failure of Hill’s Figs with this type of root-plate in this type of street planting environment remains unchanged.

41 On 9 March 2010 a second report by Adrian Swain titled “Quantified Tree Risk Assessment and Review” was provided to the council. He recommended that the Trees be retained until a suitable replacement strategy is approved and implemented, subject to continued implementation of the risk management strategy.

42 On or about 9 March 2010 the council received a heritage report titled “Laman Street Fig Trees: Heritage Assessment and Recommendations” by Heritas Architecture. The report concluded that the Trees are of historical, social and aesthetic cultural heritage value on a local level.

43 On 19 and 20 March 2010 the council held a community workshop about the Laman Street Civic Precinct project. A report to councillors by a council officer on 12 March 2010 stated that in preparation for the workshop certain reports and analyses had been collated for their information. Presentations were given by the council at the workshop.

44 This community workshop resulted in a document prepared for the council titled “Laman Street and Civic Precinct: Design Framework” dated May 2010 (Framework), which indicated that it represented the design principles and themes founded on the community consultation workshop on 19 and 20 March 2010. This is the document referred to in section A of the council resolution of 17 August 2010: see [4] above. The Framework identified the following three options and recommended the third:

Option 1 provides for retention of the Trees with management of the risk of tree failure;

Option 2 provides for removal of such Trees as are “high risk” and swift replacement by suitable species;

45 The Framework concluded:

“The resulting Design Framework is intended to be a guide for the future planning and detailed design of the Laman Street and Civic Precinct, as a representation of desired community outcomes. It is not recommended as a final design for implementation. An appropriately staged plan of Precinct is recommended as the next step in the process, to include a detailed tree succession plan adopted by Council”.

46 In or about early April 2010 the council distributed an information pack to the participants in the workshop.

47 On or about 1 July 2010 council received a further report from Adrian Swain titled “Quantified Tree Risk Assessment and Review”. He quantified the probability of failure of the Trees in the next year as moderate or 1/10. He quantified the risk of harm as 1/400, which is not within an acceptable limit of 1/10,000 (as prescribed by the British Health and Safety Executive). It was noted that a request had been made regarding the possibility of changing the existing 5 minute parking in front of the Art Gallery to 30 minutes and creating a loading zone close to the main entrance to the library, which would allow or encourage “targets to enter and linger within the target zone”. If this were to eventuate, he quantified the risk of harm as 1/20. He recommended that the Trees be retained until a suitable replacement strategy is approved and implemented, conditional on amendment to the risk management plan to ensure “targets” are excluded from the “target area” at times of high risk ie predicted wind speeds greater than 50 kilometres per hour. He proposed that consideration be given to installation of temporary barriers during high risk times, permanent road closure out of hours, and increased patrols by compliance officers to issue infringement notices to those disobeying posted signs.

48 On about 9 July 2010 the council received a report containing a feasibility study on tree restraints, prepared by William Goddard of Total Height Safety Pty Ltd. He considered tree restraints not feasible due to the visual impact, cost and the restricted access that would apply to vehicles.

49 A report of 12 August 2010 to councillors from council officers stated that the risk of harm from the Trees was currently calculated at 1/400 and that any variation to the current target occupancy, such as increased parking during high risk weather events, further increases the risk of harm to 1/20. To bring the risk of harm to an acceptable level (ie 1/10,000) immovable barriers were required which would exclude pedestrians and traffic from the target area; permanent road closure was required; and patrols should be increased during business hours to ensure compliance with signage. The report referred to a council report in December 2009 valuing the Trees at $1 million.

50 On 17 August 2010 a council officer’s memo to all councillors noted that at a councillor information session on 27 July 2010, one of the options outlined was a staged removal of the Trees with four Trees retained. The officer wrote that this would decrease the useful life expectancy of Trees on the western end and increase their risk of failure as they will be more exposed to wind. The cost of removal and replacement was estimated at $119,000 per Tree (ie a total of over $1.6 million for the 14 Trees) plus $80 per Tree per annum for pruning.

51 When the council passed its resolution of 17 August 2010 set out at [4] above, it had before it a report by council officers which recommended (a) removal of the Trees and their replacement with a central line of deciduous trees, and (b) “to manage the risks to life and property currently posed by the figs, the figs be removed as soon as possible”. The council report stated that the canopy of the Trees was prone to rapid and unpredictable failure and that:

“these defects and associated risks have been identified by Council and independent arborists. The results of the Independent Quantified Tree Risk Assessment (QTRA) indicates that the Laman Street figs pose a significant risk to public safety and Council must implement risk abatement strategies. In response to these identified risks and to exercise its duty of care, a risk management regime has been in place since December 2009. Due to the public ignoring risk management measures in place, the risk was recently reassessed and revised measures including closure of the street each evening, permanent gates and restriction of pedestrians to the southern footway are being implemented.”

52 That council report included the following:

“It was clear at the workshop that the majority of participants placed a high value on the sense of place, visual amenity, shade, heritage and ecological values provided by the existing Hills figs and that these qualities need to be incorporated into any future re-development of this area. There was robust debate around the topic of the level of risk presented to public safety by the trees, however, the overwhelming majority of those present accepted that the risks required mitigation by Council in both the short and long term and that where possible, replacement plantings will be required in the future.”

53 On or about 30 August 2010 the Council received correspondence from a member of the public enclosing a report titled “Arborist Report” prepared by Mr Mark Hartley. The report claimed that “substantial errors” were made in the reports of Mr Marsden, Mr Simonsen and Mr Swain, which council relied upon in making the decision to remove the Trees. The alleged errors included that there was no evidence that any trees were windthrown during the June 2007 storm and that the risk of harm should be calculated at 1/19,400 instead of 1/400.

54 On 1 September 2010 council’s General Manager sent a memo to councillors in response to the Lord Mayor’s request for information regarding the report by Mr Hartley. The memo stated:

“Mr Hartley’s report makes claims that appear to question the professionalism of the three consultants used by the Council. There are a number of concerns with the way Mr Hartley’s report has been written and the information he has used. It is appropriate that Mr Marsden, Mr Swain and Mr Simonsen are given the opportunity to respond in writing. These responses will be provided to Council when received.

55 Mr Swain sent a response to council on 8 September 2010. In this response he made detailed observations about Mr Hartley’s report, discussed key areas of concern and outlined how errors had been made by Mr Hartley. He concluded that the report was “biased and erroneous in several key areas”. Council’s General Manager circulated this response to councillors. The covering memo stated that “Council management and staff reaffirm their view that the advice received by Mr Marsden, Mr Swain and Mr Simonsen is sound”.

56 On 13 September 2010 Mr Michael Murray of Forest Fauna Surveys Pty Ltd provided the council with a fauna assessment report in which he concluded that removal of the Trees was unlikely to have a significant effect on threatened species.

57 On 14 September 2010 the council’s General Manager wrote the letter referred to at [5] above.

58 On or about 16 September 2010, specifications for removal of the Trees were produced. They include provision for inspection of the Trees for native wildlife before work commences, cessation of work if native wildlife is found during work, work sequencing, tree removal and stump removal. Stumps are to be ground to a specified depth below the surface level. There is to be no chasing of roots into adjoining land.

59 The issues require consideration of the following statutes and environmental planning instruments.

Roads Act 1993

60 The Roads Act 1993 provides:

“ 7 Roads authorities

…
(4) The council of a local government area is the roads authority for all public roads within the area…

(5) A roads authority has such functions as are conferred on it by or under this or any other Act or law.

88 Tree felling

A roads authority may, despite any other Act or law to the contrary, remove or lop any tree or other vegetation that is on or overhanging a public road if, in its opinion, it is necessary to do so for the purpose of carrying out road work or removing a traffic hazard.

138 Works and structures

Maximum penalty: 10 penalty units.
…
(4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person.

Schedule 2 Savings, transitional and other provisions

5 Application of section 138

(1) Section 138 does not require a public authority…to obtain a roads authority’s consent to the exercise of the public authority’s…functions in, on or over an unclassified road other than a Crown road.

Dictionary

traffic

traffic hazard

Part 4 EPA Act 1979

61 Section 76A in Part 4 of the EPA Act provides for development consent:

76A Development that needs consent

General

62 Two relevant environmental planning instruments arise for consideration under s 76A.

ISEPP

63 One is State Environmental Planning Policy (Infrastructure) 2007 (ISEPP), which provides:

“ 8 Relationship to other environmental planning instruments

(1) Except as provided by subclause (2), if there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

98 Development other than road facilities on public roads

64 Laman Street is unzoned land.

LEP

65 The other relevant environmental planning instrument that arises for consideration under s 76A is the Newcastle City Centre Local Environmental Plan 2008 (LEP), which provides:

“ 14 Unzoned land

(1) Development may be carried out on unzoned land only with consent...”

45 Preservation of trees or vegetation

46 Heritage conservation

Requirement for consent

Development consent is required for any of the following:

(b) altering a heritage item or a…tree…within a heritage conservation area…

Heritage impact assessment

49 Crown development and public utilities

(a) the carrying out of development of any description specified in subclauses (2)–(12), or…

…
(7) The carrying out by persons carrying on public utility undertakings, being road transport undertakings, on land comprised in their undertakings, of any development required in connection with the movement of traffic by road, including the construction, reconstruction, alteration, maintenance and repair of buildings, works and plant required for that purpose,
…
(9) The carrying out of any development required in connection with the construction, reconstruction, improvement, maintenance or repair of any road, except the widening, realignment or relocation of such road.

50 Council development

66 Relevantly to cll 45 and 46 of the LEP, Laman Street and the adjoining Civic Park are both within the Cooks Hill Heritage Conservation Area: see the LEP Heritage map.

Part 5 EPA Act

67 Turning to Part 5 of the EPA Act, s 110 relevantly provides that an “activity” includes the carrying out of any works but does not include any act, matter or thing for which development consent under Part 4 is required or has been obtained; and that “determining authority” includes a public authority by or on whose behalf the activity is to be carried out.

68 Sections 111 and 112 in Part 5 of the EPA Act provide:

“ 111 Duty to consider environmental impact

(1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.

National Parks and Wildlife Act

112 Decision of determining authority in relation to certain activities

Threatened Species Conservation Act 1995

Protection of the Environment Operations Act 1997

69 The applicant claims relief under s 253 of the Protection of the Environment Operations Act 1997 which provides:

“253 Restraint of breaches of an Act or statutory rules that harm the environment

STATUTORY INTERPRETATION

70 The statutory interpretation required by the case includes reconciliation of potentially competing provisions within different statutes which are expressed to apply “notwithstanding” or “despite” any other Act or law or any other Act to the contrary: s 88 Roads Act or law, ss 111(1) and 112(6) EPA Act.

71 The true task of statutory interpretation is to determine what the statute means, not what the legislature meant: Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169. Nevertheless, the task has often been described as determining the legislative intention, which is potentially misleading unless it is understood that it only means the objective intention as manifested by the words of the statute. It does not mean the subjective intention of parliamentarians or ministers, even if expressed in a Second Reading Speech: Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [31] – [33]; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12].

72 Principles of statutory interpretation relevant to the present case are summarised below. It is in the application of principles of statutory interpretation that there is an “intolerable wrestle”: Spigelman CJ, The Intolerable Wrestle: Developments in Statutory Interpretation, keynote address to the Australasian Conference of Planning and Environmental Courts and Tribunals, 1 September 2010 (quoting T S Elliot).

73 In the interpretation of a statutory provision, a construction that would promote the purpose or object underlying the Act (whether or not expressly stated in the Act) is to be preferred to a construction that would not promote that purpose or object: s 33 Interpretation Act 1987.

74 The primary object of interpretation of a statutory provision is to construe it so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 at [69]; Wilson at [13].

75 Fundamental to the task is giving close attention to the text and structure of the Act: Wilson at [12]. A Court must strive to give meaning to every word of a statutory provision: Project Blue Sky at [71]; Wilson at [13].

76 Words must be read in their context in the first instance, not merely at some later stage when ambiguity might be thought to arise. Context is used in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. This approach has been followed in a number of subsequent judgments (mostly joint judgments) of the High Court, sometimes using the language of “mischief”, sometimes using the language of giving effect to any discernible statutory “purpose”: Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99, 113; Project Blue Sky at [69] and [78]; Astley v Austrust Ltd [1999] HCA 6, 197 CLR 1 at [49] and [71]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14, 218 CLR 273 at [11] – [12]. See also Wilson at [12] – [13]; ChaseOyster Bar Pty Ltd v Hamo IndustriesPty Ltd [2010] NSWCA 190 at [42].

77 The context, general purpose and policy of a statutory provision and its consistency and fairness are surer guides to its meaning than resort merely to its language and structure: Project Blue Sky at [69]; Minister for Immigration and Citizenship v SZJGV [2009] HCA 40, 238 CLR 642 at [47]; Wilson at [13].

78 The manifest intention of a statute must not be defeated by too literal an adherence to its precise language: Minister v SZJGV at [20].

79 Where the purpose of a legislative provision is clear, a court may be justified in giving it a strained construction to achieve that purpose provided the construction is neither unreasonable nor unnatural. If the target of a legislative provision is clear, the court’s duty is to ensure that it is hit rather than to record that it has been missed. As a result, on rare occasions a court may be justified in treating a provision as containing additional words if they will give effect to the legislative purpose: Newcastle City Council v GIO General Ltd at 113.

80 Certain extrinsic material may be used in the interpretation of a provision of an Act if it is “capable of assisting in the ascertainment of the meaning of the provision”: s 34 Interpretation Act 1987. However, statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches, are rarely, if ever, capable of assisting in the ascertainment of the meaning of a provision: Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380 at [12]; followed in Sheehan v State Rail Authority (NSW) [2009] NSWCA 261 at [40]. If the meaning which would otherwise be attributed to the statutory text - which may require consideration of the context including the general purpose and policy of a provision – is plain, extrinsic material cannot alter it. It is only when the meaning of the text is doubtful that consideration of extrinsic material might be of assistance: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [52]; Catlow v Accident Compensation Commission [1989] HCA 43, 167 CLR 543 at 550.

81 Conflicting provisions of a statute should be reconciled, so far as possible, on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language, the conflict must be alleviated, so far as possible, by adjusting the meaning of competing provisions to achieve the result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the Court to determine the hierarchy of provisions and which must give way to the other: Project Blue Sky at [70]; Wilson at [13].

82 In the absence of express words, partial repeal of an earlier statute by a later statute will only be implied on very strong grounds “for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other”: Shergold v Tanner [2002] HCA 19, 209 CLR 126 at [34], quoting Saraswati v the Queen (1991) 172 CLR 1 at 17. Reading one “as subject to the other” means, I understand, that collision may be avoided by holding that the later statute, which is ex facie in conflict with the earlier statute, does not repeal but merely provides for an exception from the general rule contained in the earlier statute.

83 The question of conflict has been expressed in various ways: whether the two items of legislation can stand or live together, whether there is contrariety or direct conflict, whether they are irreconcilable: Shergold at [35].

84 Conflict between statutory provisions can be present even where there is no direct contradiction between them. For example, where it appears, as a matter of construction, that special provisions were intended exhaustively to cover their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter: Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 720 per Gleeson CJ (Clarke JA agreeing at 731), quoting Refrigerated Express Lines (Australasia)Pty Ltd v Australian Meat and Live-stock Corporation (No 2) (1980) 44 FLR 455 at 468-469 (Deane J).

85 Where there is conflict between Acts of the same legislature, courts endeavour to reconcile their texts. If they cannot do so, they resort to established canons of construction including priority to the law made later in time (Goodwin v Phillips (1908) 7 CLR 1 at 7; Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 at 33-34) and priority to a more specific law over a more general law (Smith v The Queen (1994) 181 CLR 338 at 348; Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20, 219 CLR 365 at [176]; Ferdinands v Commissioner for Public Employment [2006] HCA 5, 225 CLR 130 at [106]: Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59, 220 CLR 472 at [100]).

86 The council justifies the proposed removal of the Trees as an exercise of power under s 88 of the Roads Act which it is convenient to set out again:

“ 88 Tree felling

87 The first issue is whether the s 88 power is subject to a jurisdictional fact or facts and if so, whether the jurisdictional fact or facts are absent. It is a jurisdictional error to exercise a statutory power or discretion in the absence of a jurisdictional fact: Kirk v Industrial Relations Commission of NSW [2010] HCA 1, 239 CLR 531 at [72]. A jurisdictional fact is a criterion, the satisfaction of which enlivens the exercise of a statutory power or discretion: Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43, 236 CLR 120 at [43]; Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 at [34], [164]. The concept of jurisdictional fact was analysed in my judgment in Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 at [39]. The formation of a prescribed opinion by the decision maker may be a jurisdictional fact: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [23] – [24]. Where the jurisdictional fact is that a decision maker form a prescribed opinion, the court cannot substitute its own opinion but that does not mean that the opinion is beyond review. The court may enquire whether the opinion really was formed. The court will treat an opinion that really was formed as no opinion in any of the following circumstances (which may overlap): if it was arbitrary, capricious, irrational, formed in bad faith, formed by taking into account irrelevant considerations, based on a misconstruction of the law under which the authority is conferred, based upon an assumption which has no basis in the evidence or which is contrary to the overwhelming weight of the evidence, or based on contradictory or illogical reasoning: Chase Oyster Bar at [103] and [176] where the authorities are collected.

88 The applicant submits that the power in s 88 is conditioned on two jurisdictional facts which are for the Court to determine and that the second is not satisfied in this case. First, that the council forms the opinion to which s 88 refers. Secondly, that the Trees are a traffic hazard as defined, ie likely to cause inconvenience or danger in the use of the public road or to be otherwise hazardous to traffic. As to the first, it is common ground that the council’s opinion is a jurisdictional fact in the sense that the council had to form the required opinion, and that the council in fact formed it. There is no challenge to that opinion. I do not accept that the second is a jurisdictional fact. Section 88 expressly prescribes only one condition to the exercise of power and that is the roads authority’s opinion to which it refers.

89 As the legislature has designated the roads authority and not the Court as the repository of the only prescribed opinion, it is not appropriate for the Court to proceed on the alternative assumption that it is in error and to express its own opinion as to whether in fact the Trees are a traffic hazard as defined. If it were necessary to do so, consideration would have to be given to the fact that the definition of traffic hazard does not say that the likelihood has to exist all the time or at any particular time; and to whether the likelihood is established by the reports received by the council in evidence which indicate that in times of high wind the Trees are likely to cause danger in the use of the public road or to be otherwise hazardous to traffic: see the reports referred to at [20] – [56] above. Some of those reports indicate that each Tree in the group is reliant on the entire canopy mass to share wind loading such that the removal of three in 2007 and the removal of any others will result in increased variable wind loads on the remainder, increasing their probability of failure. Consideration would also have to be given to the acceptability of the applicant’s submission that the likelihood is countered by the council’s power to temporarily close the road when it perceives conditions which could result in a traffic hazard.

90 The applicant’s second submission concerns the words in s 88 “on or overhanging a public road”. The applicant submits that:

Roads Act

EPA Act

91 I do not accept the submission.

92 It is common ground that (a) some roots and branches of the Trees on the northern side of Laman Street respectively extend into and overhang the adjoining parkland which is not a public road; and (b) removal and replacement of the Trees is “development” (see the definition in s 4(1) EPA Act).

93 Under s 88 of the Roads Act, it is irrelevant where a tree is located provided only it is “on or overhanging a public road”. As a matter of ordinary parlance, the Trees are in my view on or overhanging a public road even though parts of some roots and branches extend into or overhang adjoining land. When a tree is planted on a public road, it is typically relatively small and its roots and branches are all within the public road. It is “on” a public road. Over the years it grows so that its roots and branches extend beyond the public road. The tree is not thereby “off” the public road: it does not thereby cease to be “on” the public road. Although a tree may be removed without removing its roots which extend into adjoining land, the removal of its branches overhanging adjoining land is unavoidable and necessarily incidental to the removal of the tree.

94 In Nominal Defendant v Duntroon Holdings Pty Ltd [2008] QCA 183 a statutory scheme provided for compensation if a motor vehicle accident out of which personal injury arose happened “on a road”. The Queensland Court of Appeal held that an accident which happens while the motor vehicle is being driven party on and party off the road is an accident which happens “on the road”. Keane JA wrote at [37]: “As a matter of ordinary parlance, one does not speak of a vehicle which is being driven as being ‘off the road’ while any of its wheels are on the road”. One recognises that the question in that case arose in the context, and for the purposes, of a different type of statute. Nevertheless, I would similarly hold in the context and for the purposes of s 88 of the Roads Act, that a tree is “on” a public road notwithstanding that some of its roots extend into and some of its branches overhang adjoining land; and that s 88 at least empowers removal of branches overhanging adjoining land with the tree if the required opinion is formed.

95 It is unnecessary to decide whether s 88 empowers removal of roots to the extent that they extend into adjoining land because in this case such roots are not to be removed. The tree removal specifications specify that the stumps are to be ground to a certain depth within the public road. There is to be no chasing of roots into adjoining land.

96 The applicant’s third submission focuses on the words in s 88 “despite any other Act or law to the contrary”. The applicant submits that (a) in the absence of s 88, a roads authority would have no power to remove trees and overhanging branches; (b) s 88 merely empowers a roads authority to do so if it forms the opinion to which the section refers thus avoiding the grant of an unconstrained power; (c) s 88 only operates to trump the provisions of “any other Act or law to the contrary” if that Act or law provides that no such unconstrained power exists; (d) s 88 does not say expressly that a roads authority may remove trees without compliance with other statutory constraints; (e) therefore there is no contrariety with the EPA Act; and (f) thus the s 88 power may be exercised but the law must be obeyed in all other relevant respects.

97 In my opinion, the purpose and text of s 88 and established canons of construction weigh in favour of the conclusion that it is intended to exhaustively describe the only planning condition for the exercise of power to which it refers and therefore is not subject to the said planning constraints of Parts 4 or 5 of the EPA Act. According to those canons, priority may be attributed to a statute dealing with the specific (s 88 Roads Act) over one dealing with the general (Parts 4 and 5 EPA Act) and to a statute that is later in time (s 88 Roads Act) over one that is earlier (Parts 4 and 5 EPA Act): see [81] - [85] above.

98 The purpose of s 88 is to empower a roads authority to deal with a situation which, in its opinion, is dangerous or hazardous. By its nature, a dangerous or hazardous situation may need to be addressed quickly, even urgently. The ongoing hazard or danger to the public which results from holding that s 88 is subject to the delay involved in obtaining development consent if required under Part 4 of the EPA Act (including taking account of all the mandatory matters in s 79C) or in satisfying the requirements of ss 111 and 112 in Part 5, suggests a construction that s 88 is not subject to those requirements of Parts 4 and 5.

99 As for the text, the words in s 88 “despite any other Act or law to the contrary” suggest that s 88 exhaustively states the planning condition of power which it confers and is not subject to any other statutory planning requirements or restrictions. In that respect, s 88 contrasts starkly with cl 10 Schedule 3 of the Road Management Act 2004 (Vic) which in an almost identical context expressly provides that it is subject to any other statutory requirements or restrictions:

“ 10 Power to remove certain trees or vegetation

(2) A coordinating State road authority may authorise an infrastructure manager or works manager to exercise the power conferred by this clause.

100 A legislative intention that another Act is not an Act “to the contrary” of s 88 unless it absolutely bars removal of trees or bars their removal if the roads authority forms the opinion prescribed by s 88, is unlikely in my view because it is virtually inconceivable that any other Act or law would prohibit the removal of a tree in all circumstances or in the specific circumstance of a roads authority forming the opinion prescribed by s 88.

101 “Despite” is a synonym for “notwithstanding”: Attorney General (Cth) v Oates [1999] HCA 35, 198 CLR 162 at [33]. In that case the High Court considered it appropriate to consider authorities on legislation using the phrase “notwithstanding anything in any other law” in construing legislation commencing “despite anything in any other law”.

102 The process of analysis for legislation containing such a phrase was set out in In re Bland Brothers and the Council of the Borough of Inglewood (No 2) [1920] VLR 522 where the Full Court construed a section of an Act commencing “Notwithstanding anything in this Act contained”. It was held at 533:

Sir Thomas Cecil’s Case

103 The approach in Bland was followed in Piper v Corrective Services Commission of NSW (1986) 6 NSWLR 352 at 358-359 (CA); Price v J F Thompson (Qld) Pty Ltd [1990] 1 Qd R 278 at 281 (Carter J); Eddy Lau Constructions Pty Limited v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 754 at [13] (Barrett J); Canal Rocks Pty Ltd v Shire of Busselton [2009] WASCA 35, 165 LGERA 242 at [56] (Pullin JA); see also Pearce & Geddes, Statutory Interpretation in Australia, 6^th ed, [12.4].

104 Bland used the word ‘inconsistent’. It is “contrarieties which make one statute inconsistent with another”: Butler v Attorney General (Vic) (1961) 106 CLR 268 at 275-276 quoting Garnett v Bradley (1878) 3 App Cas 944 at 966; followed in CapricorniaProspecting Pty Limited v Donnelly [2002] NSWCA 254 at 30.

105 A reading of Sir Thomas Cecil’s Case (1597) 7 Co Rep 18b, 77 ER 440, cited in Bland, discloses that the Act there under consideration contained the proviso “any thing in this Act before mentioned to the contrary notwithstanding” (in another part of the report the word “present” is included before “Act” in the quotation of the proviso). The wording of the proviso in Sir Thomas Cecil’s Case is relevant because (a) in s 88 of the Roads Act the same words “to the contrary” are tacked on to the proviso; (b) the additional words were not in the proviso considered in Bland; (c) Bland attached no significance to the additional words in the proviso in Sir Thomas Cecil’s Case and adopted the same approach to the proviso under consideration in Bland; (d) therefore, a conclusion can be reached with some confidence that the approach in Bland should be followed when construing s 88 of the Roads Act notwithstanding the additional words “to the contrary”.

106 Applying the process of analysis in Bland to s 88 of the Roads Act:

(a) the first step is to construe s 88 without the words “despite any other Act or law to the contrary”;
(b) the second step is to ask whether s 76A in Part 4 and ss 111 and 112 in Part 5 of the EPA Act contradict the operation of s 88 so construed;
(c) the third step is to obey the directive contained in the word “despite” and ignore what would otherwise be a contradiction from the entitlement provided by s 88.

107 As to the first step (construing s 88 without those words), s 88 expressly gives a roads authority power to “remove or lop any tree or other vegetation that is on or overhanging a public road” upon the sole condition that the roads authority has formed the requisite opinion that such action is “necessary…for the purpose of carrying out road work or removing a traffic hazard”.

108 As to the second step, it is preferable in my view to read s 76A in Part 4 and ss 111 and 112 in Part 5 of the EPAAct which are in general terms as subject to s 88 which is in specific terms, thus avoiding any suggestion of conflict or contrariety: see [85] above.

109 If that be incorrect, I would first note a tension, if not a conflict, between s 88 of the Roads Act on the one hand, and ss 111(1) and 112(6) in Part 5 of the EPA Act on the other, because, each purports to apply despite or notwithstanding any provision of the other. Then I would approach the matter along the lines submitted by the council, on the basis that an Act or law which prescribes additional conditions to the exercise of the s 88 power encroaches on its subject matter and is an “Act or law to the contrary”: see [84] above.

110 If s 88 were subject to s 76A in Part 4 of the EPA Act, then s 88 would be subject to an additional condition, namely development consent if required under an environmental planning instrument. If s 88 is subject to cl 14(1) of the LEP - if relevant in the manner alleged by the applicant - it would be subject to the additional condition that council obtain consent pursuant to Part 4 of the EPA Act where the removal or lopping of a tree by the council is to take place on unzoned land. Consequently, cl 14(1) would be a law “to the contrary” of s 88 of the Roads Act.

111 If s 88 were subject to s 112 of the EPA Act, it would be subject to additional conditions, relevantly:

112 If s 88 were subject to s 111 of the EPA Act, it would be subject to additional conditions, relevantly:

(a) that the roads authority examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity;
(b) that the roads authority consider whether the activity is likely to have a significant effect on threatened species and their habitats;
(c) that the roads authority consider the effect of the activity on any other protected fauna within the meaning of the National Parks and Wildlife Act 1974; and
(d) that if the roads authority fails to do the above it is liable to be injuncted (as the applicant claims in these proceedings).

113 Consequently, s 76A in Part 4 and ss 111 and 112 in Part 5 of the EPA Act are “to the contrary of” s 88 of the Roads Act.

114 In contrast to planning laws such as ss 76A, 111 and 112 of the EPA Act, a safety law affecting tree removal operations would not I think be a “law to the contrary” of s 88 of the Roads Act because it does not condition the exercise of power but regulates the manner of removal.

115 The third step is to obey the directive contained in the word “despite” in s 88 and ignore those contrary provisions of the EPA Act and cl 14(1) of the LEP.

116 For these reasons I do not accept the applicant’s contention that s 88 of the Roads Act operates together with the planning restrictions in s 76A in Part 4 or ss 111 and 112 in Part 5 of the EPA Act.

117 For completeness, I also note the council’s uncontested submission, which I accept, that s 138 of the Roads Act is not engaged in the circumstances of this case and that s 88 prevails over s 138. Section 138(1)(c) provides that a person must not remove a tree otherwise than with the consent of the appropriate roads authority. As Laman Street is neither a classified road nor a Crown road, cl 5 of Schedule 2 of the Roads Act dispenses with the requirement for the council, as a public authority, to obtain consent under s 138: Roads and Traffic Authority (NSW) v Ashfield Municipal Council [2005] NSWCA 234, 141 LGERA 278 at [103], [104] and [110]. Further, consent is required pursuant to s 138 where the carrying out of the works is not elsewhere authorised under the Roads Act: ibid at [80], [90], [95], [99].

PART 4 EPA ACT DEVELOPMENT CONSENT

118 Lest I am in error in holding that s 88, on its proper construction, is not subject to any development consent requirement of s 76A in Part 4 of the EPA Act, I will proceed to consider whether, in terms of s 76A, an environmental planning instrument requires the council to obtain development consent to remove the Trees: see [61] above.

119 The relevant environmental planing instruments are the ISEPP and the LEP. The ISEPP prevails over the LEP to the extent of any inconsistency: cl 8(1) ISEPP. Clause 98(2) of ISEPP provides that development for any purpose may be carried out by a “public authority” without consent on a public road that is unzoned land: see [63] above. Laman Street is unzoned land. Therefore, if the council is a “public authority” for the purposes of cl 98(2), it may remove and replace the Trees without development consent. The definition of “public authority” in s 4 of the EPA Act includes “a local authority constituted by or under an Act”. The words “public authority” in cl 98(2) of ISEPP have the same meaning as in the EPA Act: see s 5(1) ISEPP and definition in the Standard Instrument (Local Environmental Plans) Order 2006. A local council is a local authority constituted under the Local Government Act 1993. Prima facie, therefore, cl 98(2) extends to a local council and development consent is not required.

120 The applicant submits that cl 98(2) of ISEPP is inapplicable because, for the purposes of that provision, a council is not a “public authority”. The submission is founded on (a) the fact that cl 98(2) does not expressly refer to a council in contrast to s 23(1) of the EPA Act (re delegation) which refers expressly to both a “public authority” and “a council”; and (b) the reference in s 30 of the EPA Act to the concurrence of a “public authority” which could not include a council because a council cannot be a concurrence authority. I do not accept the submission. There is nothing in the context or subject matter of cl 98 which would exclude a council from its reference to “public authority”. The mere fact that a section of the EPA Act refers to both “public authority” and “council” and that another section refers to a “public authority” in a context where it could not include a council, are insufficient to divine a legislative intention to exclude a local council from the embrace of cl 98(2). As an important type of public authority (as defined) and one of the principal characters in the opera of the EPA Act, it is unlikely that the legislature intended to except a council from cl 98(2).

121 Next, if the council is a “public authority” within the meaning of cl 98(2) (as I have held), the applicant concedes that cl 98(2) overrides the LEP. However, the applicant submits that (a) it does so only in respect of such of the proposed development as lies strictly within Laman Street: and (b) therefore it does not empower the council to remove such of the roots and branches of the Trees on the northern side of Laman Street as respectively extend into or overhang the adjoining park. As I have earlier observed, it is irrelevant that some roots of some Trees extend into the adjoining park because the Tree removal specifications provide for stump grinding to a specified depth. There is to be no chasing of roots into adjoining land: see [95] above. And, as earlier held, for the purposes of s 88 of the Roads Act, a tree is “on” a public road in my view notwithstanding that some of its branches overhang adjoining land: see [93] – [94] above. On the same reasoning, I hold that for the purposes of cl 98(2) of ISEPP, a development which comprises removal of a tree is development “on” a public road notwithstanding that some of the tree’s branches overhang adjoining land. I therefore adhere to the conclusion that if s 88 is subject to development consent requirements of s 76A in Part 4 of the EPA Act, development consent is not required for this development because of cl 98(2) of ISEPP.

122 Lest I am still in error, I will turn to consider whether the LEP, viewed in isolation, requires development consent. In my view, it does. Within the LEP, the primary controls on the requirement for development consent are in cl 14, which provides that development may be carried out on unzoned land only with consent: see [65] above. As Laman Street is unzoned land, prima facie development consent is required under cl 14.

123 The council submits, however, that no development consent is required because the proposed removal and replacement of the Trees come within cll 49 or 50, which provide that no development consent is required in certain cases.

124 Clause 49(1)(a) and (7) of the LEP prevents the council from restricting or prohibiting the carrying out of development by persons carrying on “road transport undertakings” on land included in their undertakings, of any development required in connection with the movement of traffic by road including the construction, reconstruction, maintenance or repair of works required for that purpose: see [65] above. The council submits that it is carrying on a road transport undertaking and that the removal and replacement of the Trees answers that description of a development. I reject the submission. In my opinion a “road transport undertaking” involves the business of road transport, which is irrelevant for present purposes. Further, I do not accept that removal and replacement of the Trees meet the required description of development.

125 Under cl 49(1) and (9) of the LEP, development consent is not required in connection with the carrying out of any development required in connection with the maintenance of any road. The council submits that the removal and replacement of the Trees answers that description. I reject the submission. In my opinion, removal and replacement of the Trees for the purpose of removing a traffic hazard cannot be characterised as development in respect of maintenance of a road.

126 If removal of branches overhanging the park is not within the scope of s 88 or cl 98(2) of ISEPP, the council submits development consent is not required because (a) the park is zoned REI; (b) in that zone the LEP permits without development consent “environmental protection work” which is defined to include any work to protect land from “environmental degradation”; (c) as the Trees are approaching the end of their useful life they are in a state of “environmental degradation”; and (d) therefore development consent is not required to remove any part of the Trees that overhang the park. I do not accept the submission. The suggested characterisation of a tree approaching the end of its useful life as being in a state of environmental degradation is as unattractive as describing a person approaching the end of their useful life as being in a state of environmental degradation.

127 Clause 50(2) of the LEP provides that development may be carried out by or on behalf of the council without development consent on any land. The council submits that this covers removal and replacement of the Trees. The applicant submits that that development comes within one or both of two exceptions to cl 50(2): (a) where the development has a capital value of more than $1,000,000; and (b) where the development is on land that comprises a heritage item: see [65] above. In my view, the present case falls within the first exception.

128 As to the first exception, a council officer’s report to councillors of 17 August 2010 indicates that the estimated capital cost of removal and replacement of the Trees is about $1.6 million: see [50] above. The items making up that cost appear to be of a capital nature. Although there may be a difference between cost and value, this is some evidence of value and is sufficient to establish in my view that the proposed development probably has a capital value in excess of $1,000,000. That is reinforced by an earlier council report in December 2009 valuing the Trees at $1 million: see [49] above: it is unsurprising that by August 2010 the value would have increased. Therefore I conclude that the proposed removal and replacement of the Trees falls within that exception to cl 50(2) of the LEP and that cl 50(2) does not preclude the cl 14 requirement for development consent.

129 It is unnecessary to go further but for completeness I will briefly explain why I do not accept other submissions of the applicant as to why the LEP requires development consent:

(b) Civic Park and Laman Street are both within a heritage conservation area. The applicant submits that cl 46(5) of the LEP “requires” a heritage impact statement to be prepared before consent is given to development within heritage conservation areas. I reject the submission. Clause 46(5) merely provides that the council “may”, before granting consent to any development on land on which a heritage item is situated or within a heritage conservation area, require a heritage impact statement to be prepared.

(c) The applicant suggests that cl 45(3) of the LEP requires development consent for removal of the trees when read with cl 4.10.2 of the Newcastle Development Control Plan 2005 ( DCP ). I disagree. Clause 45 of the LEP prohibits removal of a tree to which a development control plan applies without a development consent or permit granted by the council. The DCP appears to apply to trees, with certain irrelevant exceptions: cl 4.10.2 DCP. However, by cl 45(6) of the LEP, cl 45 does not apply to a tree that the council is satisfied is a risk to human life or property. It is common ground that the council formed the opinion required by s 88 that the Trees are a traffic hazard. Having regard to the definition of traffic hazard, in my view the exception in cl 45(6) of the LEP applies and therefore cl 45(4) does not require the development consent or permit granted by the council.

PART 5 EPA ACT

130 If s 76A in Part 4 of the EPA Act does not apply or does not require consent for the proposed development and on the assumption that Part 5 applies to the exercise of power under s 88 of the Roads Act or cl 98(2) of ISEPP, the applicant submits that in deciding to remove the Trees the council failed to take into account the considerations mandated by s 111 and that the threatened removal would contravene s 112. Sections 111 and 112 are set out at [68] above. It is common ground that removal of the Trees is an “activity” (see s 110) and that the council is a “determining authority” under ss 111 and 112.

131 I will deal first with the threatened species issues since that issue under s 112 dominated the evidentiary contest.

Threatened Species: s 112

132 Under s 112, if the removal of the Trees is likely to significantly affect threatened species or their habitats, a species impact statement is required. That likelihood is a jurisdictional fact for the Court to determine: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55.

133 The applicant submits that this requirement has not been satisfied.

134 “Likely” means “a real chance or possibility”; and “significantly” means “important”, “notable”, “weighty” or “more than ordinary”: Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 at [84]. In determining under s 112 whether an activity is “likely to significantly affect” threatened species and their habitats, there can be taken into account any ameliorative measures to prevent, mitigate, remedy or offset impact of the development. The proposal to replace the Trees and the ameliorative measure in the Tree removal specifications can therefore be taken into account: see [58] above (cf a development application under Part 4 where the ameliorative measures must be proposed as part of the application: Newcastle and Upper Hunter Speleological Society at [83]).

135 On 13 September 2010 Mr Michael Murray of Forest Fauna Surveys Pty Ltd provided the council with a fauna assessment report which was commissioned to assess the habitat value of the Trees and whether their removal would constitute a significant impact on known, or likely, threatened species recorded to occur in the locality (within 10 kms of Laman Street). Section 5A of the EPA Act provides a test for determining whether there is likely to be a significant effect on threatened species or their habitat. Mr Murray conducted that test. He recorded in his report that there are 589 bat food trees within a 2 kilometre radius of the location of the Trees, including 314 fig trees. The loss of the 14 Trees would represent a 2.3 per cent reduction in the foraging resources within that 2 kilometre radius. Within the normal foraging range of a Grey-headed Flying-fox (average 20 kilometres per night), the reduction in foraging habitat is reduced to less than 0.01 per cent.

136 Mr Murray noted that several of the Trees contained fissures and small hollows in the lower third section of the main trunk. Fauna species that could potentially occupy the hollows would be smaller birds and microchiropteran bats. A review of threatened fauna records in the locality (10 kilometre radius of Laman Street) indicated two threatened fauna species may utilise the Trees for habitat: the Grey-headed Flying-fox and the East-coast Freetail-bat. The former may utilise the Trees as a foraging resource during fruiting (March and April), whilst the latter may utilise the tree hollows and fissures for roost and breeding sites in the breeding period (December to February).

137 Mr Murray concluded that partial or complete removal of the Trees was unlikely to have a significant impact on either species. He recommended a number of ameliorative measures to further minimise potential impacts on both species in the context of the removal process.

138 On the threatened species issue, evidence was given by bat experts Mr Charles Williams and Mr Glenn Hoye for the applicant and Dr Andrew Smith for the council.

139 On 1 April 2010 Mr Williams saw a Greater Broad-nosed bat on the wall of the Art Gallery, which is adjacent to the Trees on the southern side of the road. This bat is a threatened species and is listed as vulnerable under the Threatened Species Conservation Act 1995.

140 In his affidavit Mr Williams said that (a) it was highly likely this bat species would use hollows in the Trees for roosting and possibly as a maternity site; (b) other species of bat may also roost in the Trees as they are commonly recorded in urban areas and primarily roost in tree hollows; (c) some species of bat would commence breeding by mid October; and (d) if hollow bearing trees are thereafter removed, this disturbs maternity roosting and is likely to result in young dependent bats becoming orphaned and they are likely to die.

141 In oral evidence Mr Williams said or agreed that:

142 Dr Andrew Smith gave expert evidence for the council. He responded to the affidavit evidence of Mr Williams (served for the applicant) and the report of Mr Murray of Forest Fauna Surveys. Dr Smith concluded in an affidavit:

143 As to the Greater Broad-nosed bat sighted by Mr Williams on the wall of the Art Gallery in April 2010, Dr Smith said that the general scarcity or absence of records for such bats in the urban Newcastle area and the unusual behaviour of this individual in roosting on an open building wall suggests that it is a vagrant or juvenile that has dispersed or been displaced from its normal nocturnal habitat (coastal forests and woodlands from north Queensland to the Victorian border).

144 Mr Williams had noted that other species of bats may roost in the Trees because they are commonly recorded in urban areas and primarily roost in tree hollows. Dr Smith commented that in urban areas it is likely they primarily roost in buildings where tree hollows are scarce. Microbats are also highly mobile and are known to travel more than 10 kilometres between roosting and feeding sites giving them a wide area over which to search for and locate alternative roost sites.

145 Mr Hoye’s approach was to criticise the report of Mr Murray and the evidence of Dr Smith. Mr Hoye asserted that there were inconsistencies and deficiencies in Mr Murray’s report which cast doubt on Mr Murray’s conclusions with regard to threatened bats. He recommended that a species impact statement be prepared addressing potential impacts to the Grey-headed Flying-fox and microchiropteran bats that may utilise the Trees for roosting or foraging. Mr Hoye criticised Dr Smith’s affidavit as doing little to justify removal of the Trees because, he said, they were conclusions based largely on broad generalisations that cannot be applied across the range of bat species that potentially use the Trees. Mr Hoye had a concern with Mr Murray lumping together the 314 fig trees in a 2 kilometre radius of the Trees because they represent different species which do not necessarily bear fruit at the same time and less mature trees may bear less fruit and be lower to the ground, which bats do not like because of the predator risk. He conceded that he had no idea how many mature Hill’s Figs there are in Cooks Hill (the area of Newcastle where the Trees are located).

146 Contrary to Dr Smith’s evidence, Mr Hoye in oral evidence said he knew of records of Greater Broad-nosed bats being present in the Sydney urban area. He did not elaborate. He added that the knowledge was not sufficient to say that threatened bat species would not use urban areas.

147 Dr Smith effectively replied to Mr Hoye as follows:

148 During the hearing a detailed assessment of the hollows in the Trees was carried out by Mr Williams whose report thereon was obtained and tendered by the council. He concluded in this report that:

149 He added that the chances of a maternity roost forming would be low, although there was a reasonable chance that individual bats may occasionally roost in the Trees. Therefore, if the Trees were to be removed there should be ameliorative measures including the presence of a suitable wildlife rescue person when hollows are to be removed.

150 In oral evidence Mr Hoye was asked whether he agreed with Mr Williams’ hollows report. He did not indicate that he had any disagreement with it.

151 In oral evidence Dr Smith said that Mr Williams’ hollows report confirmed Dr Smith’s position. He pointed out that of the three hollows which Mr Williams said could potentially be used as maternity roosts, two only had a maximum depth of 20 centimetres which could only potentially contain a small maternity colony. Only the third hollow (Tree 3) was deep enough to potentially have a large colony of bats such that removal of that Tree would have a major impact. However, he would not expect a threatened bat (as distinct from a protected bat) to have a maternity colony in that Tree not only because a threatened bat has never been recorded as having a maternity colony in an urban area but because that hollow was very low to the ground and easily invadable by predators.

152 The applicant submits that the precautionary principle has a part to play in supporting the conclusion that the removal of the Trees is likely to have a significant effect on threatened species, as “full scientific certainty” might not be achievable. I do not accept the submission. The precautionary principle is one of the statutory defined principles of ecologically sustainable development which is required to be taken into account by a decision-maker in the context of a mandatory public interest consideration. Once the principle is activated, the court should assume that there will be a serious or irreversible threat of environmental damage and takes that into account notwithstanding that there is a degree of scientific uncertainty about whether the threat really exists. Lack of full scientific certainty is not to be used as a reason to postpone taking measures to prevent environmental damage. There are two cumulative conditions precedent to the application of the precautionary principle. First, a threat of serious or irreversible environmental damage. Secondly, scientific uncertainty as to the environmental damage. Once both conditions are satisfied, a proportionate or precautionary measure may be taken to avert the anticipated threat of environmental damage. See Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133, 67 NSWLR 256 at [124] – [129]; Walker v Minister for Planning [2007] NSWLEC 741, 157 LGERA 124 at [85] ff; Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423; Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 at [178] ff. The burden of proof shifts once the two conditions are satisfied. At this point the decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing the contrary shifts to the proponent of the project: Telstra at [150]. Assuming that the precautionary principle is capable of applying in a case such as the present, in my view the conditions precedent to its operation are not established on the evidence.

153 Dr Smith’s expertise and experience are considerable and his evidence was impressive. I accept his evidence and prefer it to that of Mr Hoye to the extent that they are in conflict. I also accept the evidence of Mr Williams, subject to that of Dr Smith.

154 Mr Hoye did not undertake an independent assessment in order to answer the question whether the removal of the Trees is likely to significantly affect threatened species. His evidence does not support the conclusion that it is likely and is well outweighed by the contrary conclusion of Mr Murray and Dr Smith.

155 In the result, on the evidence, I find as a fact that the removal of the Trees is unlikely to significantly affect threatened species or their habitats. Consequently, s 112 did not require a species impact statement to be prepared.

156 If I am in error, the consequence is not that the activity can never be undertaken but that a species impact statement is required before it is undertaken.

Threatened species: s 111

157 I turn to the threatened species issue under s 111. The applicant submits that the council failed to consider whether there is likely to be a significant effect on threatened species or their habitats as required by s 111(4). This may be thought to warrant consideration before the threatened species issue under s 112 because s 111 is concerned with an earlier event – consideration of the matter by the council – than the actual activity of removing the Trees with which s 112 is relevantly concerned. I have addressed the issues in reverse order because the threatened species issue under s 112 dominated the evidentiary contest.

158 Division 2 of Part 5 contains only one section, s 111. The heading of Division 2 is “Duty of determining authority to consider environmental impact of activities”. That duty is imposed in expansive and imperious terms. The determining authority must “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity”: s 111(1). The definition of “environment” is very wide: s 5A. Grafted onto s 111(1) is a limited descent into particularity in s 111(4). Section 111(1) can scarcely be read literally and without some modification of its terms. For example, the phrase “to the fullest extent possible” would present an insoluble problem to a determining authority in discharging the almost limitless burden imposed by the word “possible”, particularly having regard to the very wide definition of “environment”. Accordingly, the mandatory duty under s 111 is to be applied reasonably and with practicability. The duty is to consider to the fullest extent reasonably practicable, matters that will or are likely to affect the environment. The duty to consider under s 111 is not restricted to any time frame; hence, matters affecting or likely to affect the environment that first come to the attention of a determining authority after it had first commenced to carry out an activity could not be ignored on that account. The above analysis is largely drawn from Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1987) 7 NSWLR 353 at 366-368 (CA); and Transport Action Group against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196, 46 NSWLR 598 at [68] – [71].

159 The evidence is reasonably clear that when the council passed its 17 August 2010 resolution, it had not considered the effect of removal of the Trees on threatened species: see [4], [51] above. However, the council received a report on 13 September 2010 from Mr Murray on the effect of the removal on threatened species: see [56], [135] above. Section 111 does not require its provisions to be carried out at any particular time. It may reasonably be inferred that the council, and at least its General Manager who wrote the letter of 14 September 2010 set out at [5] above, examined and considered Mr Murray’s report. In Guthega at 368 the Court of Appeal accepted that proper consideration of materials by officials of a Department of a Minister who was a determining authority acquitted the Minister of the need to personally make an independent scrutiny under s 111.

160 The applicant does not appear to contest the council’s submission that the letter of the council’s delegate, its General Manager, of 14 September 2010 indicating that council would rely on s 88 was a further decision on behalf of the council to proceed with the removal of the Trees: see [5] above.

161 In my opinion, the applicant has not established a breach of s 111 so far as concerns threatened species and their habitats.

162 If I am in error, a factor weighing against the grant of discretionary relief for a breach of s 111 based on the threatened species aspect is that I have decided as a jurisdictional fact under s 112 that the removal of the Trees is not likely to have a significant effect on threatened species or their habitats.

Environment and protected species: s 111

163 In its closing address, the applicant submitted that the council has failed in its duty under s 111(4) to consider the impact of the proposed activity on “protected species” within the meaning of the National Parks and Wildlife Act 1974 (NPW Act), in particular arboreal fauna such as the possum.

164 “Protected species” mean all native species other than threatened species: see the definition in s 5 and Schedule 11 NPW Act.

165 In my view, this allegation lies outside the applicant’s pleadings. The only reference to fauna in the Amended Points of Claim is in paragraph 23 which pleads:

“The removal of the trees is likely to significantly affect the environment and in particular is likely to have an impact upon the fauna living in the trees, including threatened species and their habitat.

Particulars

166 The only fauna particularised is the Greater Broad-nosed bat, which is not a protected species but a threatened species. It was addressed in the evidence which I have earlier considered. As no other species of fauna was particularised in the applicant’s pleadings and as the allegation of failure to consider protected fauna was not made until closing addresses, I consider that it is unreasonable to entertain the applicant’s submission concerning protected fauna. If I am in error such that I must entertain it, I would not accept it given that the applicant bears the onus of proof and the complete absence of any evidence to support the pleaded allegation that there are “fauna living in the trees”.

167 There is a pleaded allegation that the council failed in its duty under s 111(1) by not considering the “social impact upon the residents of Newcastle” by reducing the aesthetic and recreational quality of the locality and its heritage”. Nothing was specifically made of this allegation in the applicant’s closing address, no doubt for the good reason that the evidence is against it: for example, see above at [23], [25], [39], [42] and [52]. In my view the consideration of matters affecting or likely to affect the environment required by s 111(1) was satisfied in the circumstances of this case by the council’s regard to (a) compliance with the Newcastle Urban Forest Policy; (b) the value that the mature Trees bring to Laman Street, preserving the canopy area and landscape quality of Laman Street; (c) the key benefits of trees generally including the social, aesthetic and environmental benefits; and (d) the high value of the Trees including their heritage significance: ibid.

JURISDICTION

168 The council’s final submission is that the Court does not have jurisdiction to decide the issue relating to s 88 of the Roads Act. The applicant’s submission, which I accept, is that the proceedings are brought under s 253 of the Protection of the Environment Operations Act 1997 and such proceedings are within Class 4 of the Court’s jurisdiction under s 20 of the Land and Environment Court Act 1979.

169 The usual costs rule in Class 4 proceedings such as these is that costs follow the event: r 42.1 Uniform Civil Procedure Rules 2005 (UCPR). However, a question arises as to whether no order for the payment of costs should be made against the unsuccessful applicant under r 4.2(1) of the Land and Environment Court Rules 2007 (LECR), which prevail over the UCPR to the extent of any inconsistency. LECR 4.2(1) provides:

“ 4.2 Proceedings brought in the public interest

170 In Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263, upholding a maximum sum costs order under r 42.4 of the UCPR, Basten JA (Macfarlan JA agreeing) made the following observations on LECR 4.2 and on costs considerations in proceedings to prevent a breach or threatened breach of environmental protection laws:

Latoudis v Casey

Oshlack v Richmond River Council

171 A principled three step approach has been developed in determining whether to make no order for costs against an unsuccessful applicant under LECR 4.2(1). First, can the litigation be characterised as having been brought in the public interest? Secondly, if so, is there something more than the mere characterisation of the litigation as having been brought in the public interest? Thirdly, are there any countervailing circumstances which speak against departure from the usual costs rule?: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59, 173 LGERA 280 at [13]; Hill Top Residents Action Group Inc v Minister for Planning (No 3) [2010] NSWLEC 155 at [39].

172 The following observations as to the answers to these questions are preliminary and subject to considering any contrary submissions that the parties may wish to put.

173 As to the first question, the litigation can be characterised as having been brought in the public interest for it was brought to uphold and enforce a public law statutory obligation and to ensure that the council’s power was lawful. As to the second question, there is something more than mere characterisation of the litigation as having been brought in the public interest in two respects: (a) the extent of the public interest in the lawfulness of the council’s proposed removal of these much loved Trees is considerable; and (b) the case raised issues of statutory interpretation of general importance, in particular the proper construction of s 88 of the Roads Act and cl 98(2) of ISEPP and their interrelationship with Parts 4 and 5 of the EPA Act. As to the third question, countervailing circumstances, the council foreshadowed a possible submission that certain costs were wasted due to some aspects of the applicant’s conduct in respect of which it may seek costs whichever way the proceedings went. If this is to be pressed, I will provide the council with an opportunity to do so.

174 The applicant has been unsuccessful. The orders of the Court are as follows:

Citations

Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231

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CITATION:	Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231
PARTIES:	APPLICANT: Parks and Playgrounds Movement Inc RESPONDENT: Newcastle City Council
FILE NUMBER(S):	40745 of 2010
CORAM:	Biscoe J
KEY ISSUES:	JUDICIAL REVIEW :- power of roads authority under s 88 Roads Act 1993 to remove tree on or overhanging a public road, despite any other Act or law to the contrary, if, in its opinion, it is necessary to do so for the purpose of removing a traffic hazard – whether s 88 subject to jurisdictional fact or facts – whether tree “on or overhanging” a public road where, or to extent that, some roots and branches extend into or overhang adjoining land – whether s 88 subject to any development consent requirement under s 76A in Pt 4 Environmental Planning and Assessment Act 1979 or requirements of ss 111 and 112 in Pt 5 - meaning of “any other Act or law to the contrary” – whether, if subject to s 76A, development consent required under an environmental planning instrument – whether, if subject to ss 111 and 112 in Pt 5, their requirements are satisfied - power of council to remove trees on a public road that is unzoned land under cl 98(2) State Environmental Planning Policy (Infrastructure) 2007
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 76A, 111, 112, Pts 4 and 5 Interpretation Act 1987, ss 33, 34 Land and Environment Court Act 1979, s 20 Land and Environment Court Rules 2007, r 4.2(1) Local Government Act 1993 National Parks and Wildlife Act 1974 Newcastle City Centre Local Environmental Plan 2008, cl 14 Protection of the Environment Operations Act 1997, s 253 Road Management Act 2004 (Vic), cl 10, Sch 3 Roads Act 1993, ss 88, 138 State Environmental Planning Policy (Infrastructure) 2007, cl 98(2) Threatened Species Conservation Act 1995 Uniform Civil Procedure Rules 2005, r 42.1
CASES CITED:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 Astley v Austrust Ltd [1999] HCA 6, 197 CLR 1 Attorney-General (Cth) v Oates [1999] HCA 35, 198 CLR 162 Butler v Attorney-General (Vic) (1961) 106 CLR 268 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Canal Rocks Pty Ltd v Shire of Busselton [2009] WASCA 35, 165 LGERA 242 Capricornia Prospecting Pty Limited v Donnelly [2002] NSWCA 254 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59, 173 LGERA 280 Catlow v Accident Compensation Commission [1989] HCA 43, 167 CLR 543 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263 Eddy Lau Constructions Pty Limited v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 754 Ferdinands v Commissioner for Public Employment [2006] HCA 5, 225 CLR 130 Fernance v Nominal Defendant (1989) 17 NSWLR 710 Garnett v Bradley (1878) 3 App Cas 944 Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43, 236 CLR 120 Goodwin v Phillips (1908) 7 CLR 1 Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1987) 7 NSWLR 353 Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380 Hill Top Residents Action Group Inc v Minister for Planning (No 3) [2010] NSWLEC 155 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59, 220 CLR 472 In Re Bland Brothers and the Council of the Borough of Inglewood (No 2) [1920] VLR 522 Kirk v Industrial Relations Commission of NSW [2010] HCA 1, 239 CLR 531 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 Minister for Immigration and Citizenship v SZJGV [2009] HCA 40, 238 CLR 642 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20, 219 CLR 365 Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14, 218 CLR 273 Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 Nominal Defendant v Duntroon Holdings Pty Ltd [2008] QCA 183 Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 173 Piper v Corrective Services Commission of NSW (1986) 6 NSWLR 352 Price v J F Thompson (Qld) Pty Ltd [1990] 1 Qd R 278 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 Roads and Traffic Authority (NSW) v Ashfield Municipal Council [2005] NSWCA 234, 141 LGERA 278 Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Live-stock Corporation (No 2) (1980) 44 FLR 455 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 Saraswati v the Queen (1991) 172 CLR 1 Sheehan v State Rail Authority (NSW) [2009] NSWCA 261 Shergold v Tanner [2002] HCA 19, 209 CLR 126 Sir Thomas Cecil’s Case (1597) 7 Co Rep 18b, 77 ER 440 Smith v The Queen (1994) 181 CLR 338 Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133, 67 NSWLR 256 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Transport Action Group against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196, 46 NSWLR 598 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 Walker v Minister for Planning [2007] NSWLEC 741, 157 LGERA 124 Wik Peoples v Queensland (1996) 187 CLR 1 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198
DATES OF HEARING:	6-8, 18 October 2010
DATE OF JUDGMENT:	11 November 2010
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Ayling SC with Ms L M Byrne and Mr C Fraser, barristers SOLICITORS Catherine Henry Partners RESPONDENT: Mr A Galasso SC with Mr B Koch, barrister SOLICITORS Sparke Helmore