Wyong Shire Council v Deemay Enterprises Pty Ltd
[2002] NSWLEC 28
•03/15/2002
Land and Environment Court
of New South Wales
CITATION: Wyong Shire Council v Deemay Enterprises Pty Ltd [2002] NSWLEC 28 PARTIES: PROSECUTOR
Wyong Shire Council
DEFENDANT
Deemay Enterprises Pty LtdFILE NUMBER(S): 50077 of 2001 CORAM: Sheahan J KEY ISSUES: Prosecution :- removal of tree without consent - plea of not guilty - exemptions - honest and reasonable mistake of fact LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 125
Wyong Shire Council Local Environmental Plan 1991
Wyong Shire Council Development Control Plan No.14
Wyong Shire Council Development Control Plan No. 67CASES CITED: Australian Iron & Steel Pty Ltd v EPA (1992) 29 NSWLR 497;
He Kaw Teh v The Queen (1985) 157 CLR 523;
Proudman v Dayman (1941) 67 CLR 536;
State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721DATES OF HEARING: 21/02/02-22/02/02, 8/3/02 DATE OF JUDGMENT:
03/15/2002LEGAL REPRESENTATIVES:
PROSECUTOR
Mr T Howard, Barrister
Abbott Tout, Solicitors
DEFENDANT
Mr M Fraser, Barrister
P J Donnellan & Co, Solicitors
JUDGMENT:
WYONG SHIRE COUNCIL
Prosecutor
v
DEEMAY ENTERPRISES PTY LIMITED
Defendant
Introduction
1. This is a prosecution involving the removal of a tree.
2. The defendant company Deemay Enterprises Pty Limited (“the defendant” or “the company”), of which Donald Joseph May (“Don May” or “May”) is the “governing mind” (see search Exhibit P5), has pleaded not guilty to the following charge laid by the prosecutor, Wyong Shire Council (“the Council”):
…that between 25 January 2001 and 31 January 2001 the Defendant committed an offence against section 125 of the Environmental Planning and Assessment Act, 1979, whereby the Defendant did, without consent from the Prosecutor, cut down, remove, injure or destroy a tree on Lot 1, Section 2 in DP758063 being 19 Point Street, Bateau Bay in the State of New South Wales, which cutting down, removal, injuring or destruction was forbidden to be done by clause 28 of Wyong Local Environmental Plan 1991.
3. Council alleges, inter alia, that the removal of the subject tree facilitated the implementation of the company’s development application (“DA”) for a dual occupancy on the subject land, so that the defendant actually had a motive for removing the tree at the relevant time.
4. The grounds of defence filed on 21 September 2001 plead that the defendant was entitled to remove the tree without consent, pursuant to the provisions of cl 28(3)(j) of the Wyong LEP 1991.
5. The defendant further pleads that “through its Director, Mr May, [it] had an honest and reasonable belief in a state of facts which, if they existed, would make the Defendant’s act innocent. The state of facts which the Defendant honestly and reasonably believed existed is that the tree in question was dead or dangerous and posed an immediate threat to life or property, and that accordingly consent was not required for the works undertaken”. Proudman v Dayman (1941) 67 CLR 536.
6. The following relevant facts are not in issue between the parties:
(i) the subject site (see Map Exhibit P1) is clearly located within the 2a Residential Zone of Council’s area (see Exhibit P8);
(ii) the defendant owned the subject land;
(iii) the subject tree was a Eucalyptus pilularis, generally known as a Blackbutt (“the tree”), and was a mature tree having a height of 40ft, a 25ft “spread”, and a base-of-trunk diameter of between 800mm and 1m;
(iv) no consent was obtained from Council, prior to 25 January 2001, approving the removal of the tree; and
(v) the defendant engaged Matthew McGrath of Hobbitt Tree & Landscape Care (“McGrath”) to remove it from the subject land on its behalf, and McGrath did so.
7. Council produced two photos it claims show the tree in 1995 (Exhibit P11 Tab E), and the tree in those photographs is certainly very large indeed, but the suggestion that those photographs depict the tree has not been proven to the court’s satisfaction.
8. The defence case is that:
(a) Don May concluded, from his own observation on the company’s behalf, that the tree was dying and dangerous;
(b) the defendant retained McGrath to assess the tree prior to making any decision to remove it, or have it removed;
(c) as McGrath observed that the tree’s two crowns were completely dead, and other branches (perhaps 60% of the tree) were dying, and as he found an aerial termite nest, a ground termite nest and several flight cuts to connote termite infiltration, his expert conclusion was that the tree constituted a danger to life and property;
(d) McGrath told an unnamed officer of the Council what he had found on his inspection, and was told by that Council officer, that, on those findings, consent was not required for the removal of the subject tree;
(e) when McGrath reported his findings, and the result of his Council inquiries, to May, the defendant engaged McGrath to remove the tree; and
(f) consent of Council was not required:
(i) because the removal of the tree was “exempt vegetation management works” pursuant to clause 28(3)(j) of Wyong LEP 1991; and/or
(ii) because the guiding mind of the defendant reasonably relied upon the advice of a qualified expert to form an honest belief that the defendant was entitled to remove the tree without consent.
9. The prosecutor must prove each and every element of the offence, and negative the defendant’s “exempt … works”, and/or “honest and reasonable mistake of fact” defence(s), beyond reasonable doubt. He Kaw Teh v The Queen (1985) 157 CLR 523. See also Australian Iron & Steel Pty Ltd v EPA (1992) 29 NSWLR 497.
The Regulation of tree removal in Council’s area
10. The removal of trees in the Council’s area is governed by a range of documents.
11. Wyong Shire Council Local Environmental Plan 1991 (“the LEP” - Exhibit P2) relevantly contains the following provisions.
12. Clause 28(2) of the LEP provides:
A person shall not remove, injure or destroy any tree or clear native vegetation or cause, or permit or authorise such works, except where the works are authorised by a development consent.
13. It is not contested that clause 28(2) applies to the subject tree, and to its removal. However, cl 28(3)(j) provides that “consent is not required for … any works defined as ‘exempt vegetation management works’ by this plan”.
14. In clause 7.1 the following definition appears (some emphasis added):
“ exempt vegetation management works ” includes any one or more of the following works:
(a) pruning in accordance with Australian Standard AS 4373 – 1996 ‘Pruning of amenity trees; or in accordance with a development control plan adopted by the Council;
(b) removal of native vegetation to give effect to development in accordance with a consent;
(c) removal of dead or dangerous trees posing an immediate threat to life or property;
(d) removal of native vegetation to facilitate emergency access by the Council or another public authority;
(e) removal of native vegetation which is a bush fire hazard causing immediate risk to life or property, or authorised or required by a bush fire management plan adopted pursuant to the Rural Fires Act 1997;
(f) removal of undesirable species.
15. The defendant contends that the removal upon which the charge is based was permissible without consent on the basis that it came within par (c) of the above definition, namely, “removal of dead or dangerous trees posing an immediate threat to life or property”.
16. The prosecution case relies upon the failure of the tree to meet paragraph (c) of the above definition, and the failure of the defendant to have an honest and reasonable belief that it did so.
17. Wyong Shire Council Development Control Plan No 14, entitled “Tree Management” (“DCP 14” – Exhibit P3) relevantly contains the following provisions.
18. In s 1.6 the term “culturally significant tree” is said to mean “trees which are significant features of the cultural landscape, and are listed under Schedule 7.2.5”.
19. Included in the list of “Trees of Cultural Significance” at schedule 7.2.5 is the item “Blackbutt (Eucalyptus pilularis) Bateau Bay East, Minimum Trunk Size at 1.4m2 300mm, Tree Protection Zone measured as metres from trunk, Optimum 8.0, Minimum 4.0”.
20. The notes to schedule 7.2.5 provide as follows:
1. Bateau Bay East is the area of Bateau Bay East bounded by The Entrance Road, Yakalla Street and Barry Street.
2. Where the tree has more than one trunk, the trunk size is obtained by adding the measurements of each trunk together to get a total trunk size.
3. Examination of the tree and roots by a qualified and experienced arborist, and preparation of the arborist’s report under Clause 2.5, may be able to demonstrate that disturbance of this area is possible, but not less than the Minimum Tree Zone. Disturbance includes excavation deeper than 200mm, any construction activities and placement of paving or impermeable hard surfacing.
4. This distance indicates the minimum tree protection zone required to maintain the tree. However, an arborist’s report prepared under Clause 2.5 which includes the examination of the tree and roots, must firstly be prepared and show, to Council’s satisfaction, that the disturbance and injury will not cause a reduction in the tree’s life expectancy.
21. Section 2 of DCP 14 deals with tree removal and, inter alia, contains the following, in s 2.5, headed “Arborist’s reports”:
Council recommends choosing a qualified and experienced person to prepare an arborist’s report. The minimum qualification recommended is the Certificate of Horticulture, including the Arboriculture elective, or interstate equivalent, and preferably five years experience in tree diagnosis and reporting.
22. Section 2.5 goes on to specify the information required to be included in the arborist’s report, and s 4 deals with exemptions from the requirement to obtain a consent. Section 4.1(j)(iii) makes clear that “Exempt Vegetation Management Works”, which do not require consent, include:
removal of dead or dangerous trees , only where the tree’s instability is obvious and there is immediate danger and/or hazard , for example, structurally split trunks, trees or limbs, felled by storms, that are damaging buildings or blocking access ways; or
(Note: If appropriate, the branch removal option should be adopted in preference to complete tree removal).
23. Wyong Shire Council Development Control Plan 67
(“DCP 67” - see relevant extract in Exhibit P4) has a chapter (Chapter 3) dealing with Environment, Vegetation and Heritage Protection. Section 3.4 deals with trees and gives a detailed procedure which must be followed when trees are to be removed and the product of the removal process disposed of. The section also goes on to deal with work in the vicinity of trees, and, in Table 1, provides for protective fencing at minimum distances in regard to various categories of tree.
The Witnesses
24. The prosecutor relies upon four witnesses who gave both affidavit and sworn oral evidence:
(1) John Francis Roseland is the Environmental Health Officer of Wyong Shire Council. He swore two affidavits (23 July 2001 and 20 February 2002). His major involvement in tree removal is as part of the development assessment process. He has worked in local government in the environmental area since 1984 and has had more than six years experience in relevant assessment work. He testified to having inspected many hundreds of sites and assessed hundreds of development applications which involved an assessment of vegetation and trees. He conceded that he had no qualifications as an arborist, tree surgeon or in arboriculture, and he deferred to experts such as McKay in those areas, but he claims a “ sound understanding of the floristic characteristics of native trees and can make a preliminary evaluation as to the health of such trees ”. He does not usually assess applications for specific removal consents, but his delegation goes to the approval of removing of trees. He has some training in termite identification.
(2) Josephine Ryan has resided at 24 Bateau Bay Road, Bateau Bay, adjacent to the subject site since July 1982. She swore one affidavit (3 September 2001). The subject tree overhung the north-eastern boundary of her property, which is south of the subject site, on the eastern side of the main road, and she and her husband regularly watched birds nesting in the lower parts of the tree.
(3) John Edward Salmon lives some 200m away from the subject site. He is retired, but has lived in Bateau Bay for some 20 years, and regularly cycles past the subject site. He swore one affidavit (3 September 2001). He is a bush care activist, and the current president of the Bateau Bay-Shelley Beach Progress Association. He has undertaken some TAFE education on bushland regeneration, and asserts the ability to distinguish between healthy and degraded native fauna, after 35 years experience of bushland regeneration. He acknowledged that he had undertaken no direct education regarding the health of trees, but he understands and recognises stress in them.
(4) Stephen Lee McKay , now of Ku-ring-gai Municipal Council, was the tree assessment officer at Wyong Shire Council for some six years up to and including the relevant time. He swore two affidavits (13 July 2001 and 20 February 2002). A detailed CV is attached to the second affidavit, indicating 20 years combined professional experience as a horticulturalist and a local government tree preservation officer. His academic transcript is also attached. He has a certificate of horticulture, a certificate of arboriculture techniques, a certificate on bushland generation, and is completing his diploma of horticulture. He has been employed in the horticulture industry for 20 years, and the court acknowledges his expertise and experience.
25. The defendant called three witnesses to give oral evidence:
(1) a town planner, Howard Leslie. The DA for the defendant’s proposed development on the subject land was prepared by Leslie’s firm and negotiations concerning it were conducted with Council by that firm’s employee, Ross Howard.
(2) Don May himself; and
(3) Matthew McGrath , who has TAFE qualifications in tree surgery and arboriculture techniques. He also completed a course on the assessment of hazardous trees with the National Arborists Association in 1997 (see Exhibit D3 ). He has worked in tree assessment since 1991, and describes his business as “ Qualified Tree Surgeon ” ( Exhibit P14 ). He believes he is entitled to refer to himself as an “ arborist ”.
The evidence
26. All seven witnesses were subjected to searching cross-examination, and the court, satisfied of the truthfulness of all seven, despite some inconsistencies in their evidence, has concluded as follows:
27. May and his wife Margaret conduct a caravan park in Council’s area. At that park, May has had experience with branches falling from gum trees. The defendant company was incorporated on 5 May 2000, with May, his wife and two sons as directors. It installs and sells manufactured homes, which are placed on rented sites at the caravan park.
28. The company has a superannuation fund, and May decided to buy the subject property on behalf of the Fund to develop on it a dual occupancy project. He attended an auction and signed a contract to purchase it on 14 October 2000 (Exhibit P15). The contract allowed a 42 day settlement period, and contained a survey, and a “s 149” certificate which mentioned, inter alia, DCP 14 as dealing with “… tree removal”. However, the contract documentation made no specific reference to the tree, and it was not depicted in the survey.
29. May says that, as settlement approached, he became sensitive about the “public risk” aspects of the vacant property, and visited it for the purpose of an inspection. The tree “looked dangerous” or “suspect” to him, with some of the dead and dying branches overhanging the footpath on Bateau Bay Road and the internal driveway. His insurance broker, when contacted, recommended that he do whatever an arborist advised to protect his position.
30. As McGrath had worked as tree management consultant for May at the caravan park, May rang him and asked him to check the tree and report back his recommendations.
31. McGrath testified that he inspected the tree on 28 November 2000 and prepared a written “assessment” (now in evidence as Exhibit P12 – see par 74).
32. McGrath found the tree in “distress, and showing quite immediate signs of danger”. He did not climb it, but inspected it thoroughly from the ground. It had an “unnatural” lean. The two “pinnacles” were 80% dead; there was an arborial termite nest 2-4m from the top, approximately the size of two footballs; the timber above that nest was dead; and the tree was generally in decline with numerous dead branches, and a chlorotic or necrotic colour or tarnishing of leaves. He also observed evidence of die-back – foliage was sparse and shoot growth poor - and of flight cuts at the base of the tree, between 1200mm above the ground and shoulder height. He also observed fresh “mud”, indicating that the flight cuts were themselves fresh. There was evidence of previous branch failure, and he concluded that the tree exhibited active termite involvement.
33. He concluded the tree was “particularly dangerous”, “most likely to fail” from the junction of two trunks, and in need of removal.
34. In a statement he prepared for May to send to Council some time between 2 and 15 February 2001, after the tree was removed (Exhibit P11 Tab H), McGrath said:
Mr May’s concern for people and property was to me a very realistic approach with regard to said tree .The said tree had numerous dead branches and a dead crown as well as being riddled with termites, aerial nests as well as ground nests. The dead branches were a real danger to anyone passing underneath.
…
I love trees and would never remove a healthy specimen. I would do everything in my power to rescue a tree if it was feasible to save .
35. McGrath also testified that he contacted Council and was told by a staff member that if the tree was as he described it no permission was required to remove it. He said that he then telephoned May and advised him of his opinion and of the result of those Council inquiries, and that May asked him to take the tree down as soon as possible.
36. McGrath says he attempted to do the removal job before Christmas 2000, but the equipment broke down and he postponed removal until late January 2001. In his December 2000 visit to the site he pointed out the problems with the tree to a neighbour (presumably Mrs Ryan, whose evidence corroborated that this conversation occurred at about the time he said).
37. The tree was cut down on 25 January 2001, and someone complained to Roseland, who visited the subject site on that date. The v-shaped trunk was still standing – one part of it was about 5m high and each prong was 500mm in diameter. The branches and foliage left on the ground were inspected – “the foliage was green and turgid and the branches, where they had been cut, exposed wet wood which looked fresh” (par 5 affidavit of 23 July 2001). Roseland took photographs (Exhibit P9), spoke to workmen, and marked the location of the tree on development plans already available to the Council. The workman questioned told him he had not seen any approval for removal of the tree, and he then complied with Roseland’s direction to stop all work and remove material from the road reserve.
38. Roseland “did not see any obvious signs of any rot or termite damage within the trunk and branches of the tree, nor did I see any signs of rot of (sic) termite damage within the segments of the trunk and branches that had been sawn off by a chainsaw which were lying on the ground. …the foliage from the … tree was green and healthy and showed no obvious sings of any ‘die back’ or disease to indicate that the tree was diseased or unhealthy” (pars 4-5 of 20 February 2002). The presence of dead timber was “minimal”. He would expect a tree of that size to have some dead portions scattered throughout it, but he noticed “minimal die-back” and “no wholly dead branch”.
39. When shown a photo (which became Exhibit D2) Roseland testified that he could see some malformation but no “mud” or “castings” to identify termite presence. He agreed that flight cuts would indicate a high level of termite infestation. Sudden death of a branch may indicate termite activity. He agreed that the effects of active termite infestation are “inherently unpredictable”, but that a threat would be immediate if the branch were completely dead and infested to a major degree.
40. Roseland concluded that the tree “looked stable and was not diseased in any way to suggest to me that it was dangerous and likely to cause any immediate threat to any property or human life to warrant its removal”.
41. Roseland conceded that there was an immediate threat posed by the dead branch, but not from the tree itself. He said he would need to see 85% of the tree in a poor condition to determine the whole tree to pose an immediate threat.
42. Roseland contacted McGrath and asked if he had approval to remove the tree. Roseland testified that McGrath said “no, because at Gosford Council if a tree is dangerous you can just take photos of it and just go ahead and remove it” (par 7 of affidavit 23 July 2001). He asked McGrath to “write down the circumstances as to why you consider that the tree was dangerous and submit it to Council”, and also asked him to contact McKay.
43. McGrath claims that he was not aware at the time of his conversation with the Council that May was having designs prepared for a dual occupancy development on the site. He is generally aware of the “rules” regarding trees, but not familiar with documents like LEPs and DCPs. He admitted to the version of his conversation with Roseland which appears in Roseland’s affidavit. When pressed on the immediacy of the need to remove the tree, he said that he was busy, and had a holiday booked, so he had even suggested to May that the defendant could retain someone else to do the job earlier.
44. Roseland located the tree trunk at “about 3m from the property boundary adjacent to Bateau Bay Road” and scaled the proposed building to a setback of 4m to that boundary.
45. The most relevant Council officer, McKay, was on leave at the time, and first attended the subject site on 31 January 2001. Two standing stems of the trunk measured at 1.3m above ground level, had diameters of 550mm and 600mm, and he took photographs of what he inspected on that day (see Exhibit P10 and Tab F of Exhibit P11), and made contemporaneous notes. He located the tree stump at “approximately 4.5m from the western boundary and 3m from the southern boundary”. He says his inspection of the debris was “very thorough”. He saw nests of termites, but no “workings”.
46. He concluded that the foliage he inspected seemed to be in good health when the tree was removed, and that its density indicated the tree to have been healthy. He could see no obvious sign of decay or structural defect, and less than 5% of the canopy had dead wood pieces up to 50mm in diameter, indicating that the tree canopy was of good density and the tree itself in good health.
47. In par 4 of his second affidavit he says that “the volume of leafy foliage on the ground led me to believe that the tree had good canopy density which would be consistent with that of a tree in good health”. He formed the opinion that less than 5% of the cut foliage was dead wood. The dead wood had diameters of about 50mm and the cut branches ranged in diameter from 100-450mm.
48. McKay concluded that the tree showed no visible signs of any decay or termite damage – his photographs do not show any evidence of extensive hollowing to indicate termite damage of such extent as to render the tree unhealthy and warrant its removal. The termite damage he found could easily have been treated.
49. When McKay returned to the site on 13 February 2001, the tree trunk had been removed and ground out. Part of the stump section was left on the property but showed no obvious evidence of extensive termite works that could have rendered the tree dangerous.
50. McGrath opined that McKay did not search the debris comprehensively enough – McGrath says that McKay would then have found dead material underneath the healthier looking stuff on top. That would satisfy “anyone” of the “vast extent” of termite activity. The tree had no hope of surviving; it was declining “at a rapid rate”. There would be no guarantee of any treatment succeeding and it was not viable in this case. During his oral evidence he pointed out in the photographs in Exhibit P9, what he said were dead and chlorotic leaves.
51. McGrath eventually (on 10 July 2001 – Exhibit P14 fol 56) rendered an account on behalf of “The Hobbitt Tree Service” to “Macquarie Shores Village” for approximately $1,270, which was paid on 11 July by the defendant company (Exhibit D7). The invoice referred to:
Removal of Blackbutt
Cut to ground level +
stump grind.
All material chipped +
removed
7 hours
.
52. May was frank and forthright in his evidence. He strongly denied that he arranged the removal of the tree to advance the development potential of the subject land. He says he was worried about the risks posed by the tree, and glass etc. in the existing building on the site, and his insurance position. He denies that he saw the tree as an impediment to his plans or the site. He was advised that he should do whatever a tree expert recommended. He was satisfied with McGrath’s expertise at the caravan park, and so sought his advice. He did not act to have the tree removed until he received McGrath’s advice. He had hoped the tree would be removed in December, but accepted that arborists often “took time” to get to jobs, and asked McGrath to do it as soon as possible.
53. Regardless of the tree, and of his dealings with McGrath, May engaged Leslie to develop concept plans for the proposed dual occupancy on the site. Both men say that they never discussed the tree, and Leslie says he discussed it with no-one from the defendant company. Leslie prepared concept plans (Exhibit P7), which were acceptable to May, who engaged Leslie’s firm to consult with Council, and then prepare and lodge a DA. All this occurred prior to 25 January 2001.
54. The relevant DA for the dual occupancy development was not lodged until 21 March 2001 and it incorporated various other documents, including three drawings and a statement of environment effects (see Exhibit P6). The drawings were generated during the pre-DA consultation and the whole Council file was produced to the court on subpoena. Exhibit P7 includes a receipt dated 25 January 2001 for “development application fees” in respect of the subject land and “indicative” drawings. In the statement of environmental effects it is said that no more adverse impact is expected on the environment than emanating from any other residential development in an area zoned for such a purpose. Relevantly it says “there will be no removal of any significant vegetation”. That application now enjoys the Council’s approval.
55. Leslie and May both testified that May himself had no dealings with the Council regarding the DA.
56. Leslie did not consider the tree to be significant, nor to constitute any impediment to a small dual occupancy project, as the preferred design could be moved around the site to accommodate it. He says that trees enhance his firm’s designs, and moving the project around the site would have had no dramatic impact. The reason for seeking pre-DA consultation with the Council was that he feared that the existing building on the site may have been thought to have some heritage value.
57. The tree is not shown on any of Leslie’s plans, including his prepared site plan (Exhibit D4), but, as he pointed out, neither is the existing building, nor the location of sewer main, etc. He believes that the Council could, and probably would, have imposed a condition on consent requiring the proposal to be revised to accommodate the tree. Dual occupancy projects require a site analysis including vegetation etc. and his practice would be to obtain a full survey to accurately plot and measure the tree. The survey did not show the tree, so he regarded it as “not existing” for his purposes. He would happily have adjusted the design.
58. Leslie believes that the tree constituted no threat at all to the proposal. He knew it was a eucalypt and that it was, in terms of DCP 14, over 300mm in diameter. He says he would have noticed if the tree were “demonstrably unhealthy” or dead. Leslie said that if the tree were where the prosecution claimed, he would have had to discuss it with May, but May, in fact, left the design up to him. It is clear that if the tree remained, and an 8m protective zone were required, the design as now approved could be difficult, if not impossible to achieve, wherever exactly it was.
59. The precise location of the tree on the subject land is a matter on which various witnesses differ (see pars 44 and 45 above).
60. Leslie’s plotted location of the tree is 500mm from the fence and closer to the western boundary. If the tree were where he believes it was, it would again be impossible to do the design at 8m, but probably okay at 4m.
61. May and Council officers attended the subject site on 1 March 2002, located the stump, and took photographs and measurements. The court is satisfied that the centre of the tree trunk was 1.3m from Mrs Ryan’s boundary and 4.2m from the street boundary (see Exhibit D6).
The condition of the tree at the time of its removal
62. There is, in the evidence recounted above, a clear conflict among the three witnesses with relevant expertise – Roseland, McGrath and McKay – as to the likely condition of the tree when it was removed on 25 January 2001. McKay is clearly the most experienced and best qualified of the three, but McGrath has substantial practical experience, and some relevant training, and is the only one of the three to have examined the tree in situ, alert to the fact that the owner had concerns it wanted appraised.
63. May relies on the photograph he took post-removal (Exhibit D2) to corroborate his pre-removal opinion that the tree was in a condition posing “high danger”. He also testified that he saw “active ants” in the stump grindings on site.
64. Ryan testified that, as at the relevant date, “the tree appeared to be in good health to me. Over time I observed that the tree dropped a lot of leaves, but it was a very large tree. I did not notice anything unusual about the tree before it was removed”. However, “in about the second week in January I noticed that a large branch of the tree that overhung the footpath appeared to be dying. This was also noticed and commented on by my neighbours”. She told McKay about the dying bough when he was taking photographs on the site. She also told McKay that she knew there were termites in the tree. Although it was very high, the tree did not “tower over the house”. It was hard for her to see the upper branches of the tree because they were obscured by the lower branches, so she is unable to testify whether the top of the tree was dead or alive. She noticed no other boughs dying, except the one hanging over the footpath, and she considered it was possibly dangerous.
65. Salmon was unable to testify that he had noticed the dead bough across the footpath, but he would not have taken particular notice of it in any event, as dead branches are a normal function of this species of tree. He made no specific observation of dead branches in the crown. He certainly never made any specific inspection of the tree, and he did not act until someone called him in his presidential role. In his opinion, at the relevant date, the tree was “in excellent health, with no visible signs of die-back or injury” (par 5 of his affidavit 3 September 2001). Die-back can be a stress on a tree – it would start to defoliate and look unhealthy. Its leaves would have a bad colour. No such signs were visible on this particular tree – he would have noticed. He acknowledged that the presence of termites in such a tree would be a normal aspect of biodiversity, and could cause the dead wood in the tree to fall, but they rarely eat even the dead wood in a live tree. He regarded the tree as “magnificent, well and healthy”, and was “proud to think it was in our district”.
66. McGrath’s statement to the Council (as to which see par 34 above, and further below) asserts that he kept a section of it showing “extensive termite damage”. “There is also evidence still at the site of termite invasion”. There was only the one sample, and that remained on the site for some time. It could not be produced to the court, as it was removed from the subject site when the old building was demolished, May says, in October/November 2001.
The Council’s response to the removal
67. Following the investigations carried out by Roseland and McKay, as detailed above, Council wrote to the company on 2 February 2001 (Exhibit P11 Tab G), recording that no application was made, nor consent issued, for the removal of the tree. The letter is in the nature of a “show cause” notice. The company responded with a letter, signed by May and dated 15 February 2001 (ibid Tab H), explaining:
I was concerned the condition of the tree, which had several large, dead limbs overhanging foot paths and parking areas, represented a public liability risk.
… the work was carried out at considerable expense, only after consultation with Mr McGrath and my insurers ”.My insurers recommended I consult a qualified arborist, whose statement is attached, to inspect and report on the condition of the tree and then take appropriate action .
68. May forwarded with that letter a “statement” from “Matthew McGrath Arborist” (also at Tab H), which is criticised in Council’s letter to the company, dated 7 March 2001 (Tab I), which said, inter alia:
The arborist’s statement you have tendered as supporting evidence for tree removal appears to lack technical analysis, reference to scientific journals and/or literature, evidence of the author’s qualifications and affiliations with professional associations, or a report format which are identifiable qualities of a professional arborist report .The limited information provided in your response does not satisfy Council that you should be exempt from obtaining written consent for tree works as required under the provisions of Development Control Plan No. 14 – Tree Management or that complete removal of the Blackbutt was necessary.
…
Other issues which require clarification:
…
· The relevance of recent lodgement of preliminary development plans for a dual occupancy on the property which does not consider the retention of this tree.
69. The company’s solicitor, Mr Donnellan, replied on its behalf (ibid Tab J), in the following terms:
We advise that we have been instructed by Deemay Enterprises Pty Limited in relation to this matter . We are instructed to reiterate that our client’s contractor maintains that he sought the consent of the appropriate officer at the Council in relation to the removal of the tree and was told that no consent was needed. That was probably because the tree was plainly diseased and dangerous. Our client’s contractor has photographs which will clearly establish this to have been the case. He has also retained part of the tree to demonstrate its infestation with white ants.
Would you be so kind as to indicate to us whether it is the Council’s position that it would have refused any consent that it was requested to give for the removal of this tree.We are instructed that there is no connection between the removal of the tree and the plans that our client has for development of the property, and that is a fact that can be readily established, if it needs to be, by having a look at the footprint of the proposed development in relation to the location of the tree.
70. McGrath testified that his sister took his photos to England and cannot locate them, and, as noted above, May testified that the retained remnant of the tree was kept on site until disposed of by demolishers in October/November 2001.
Evaluation of the Evidence
71. Faced with the unavailability of both McGrath’s photographs and the remnant of the tree, the court has to rely on only the verbal evidence.
72. The prosecutor strongly attacked the credit and the evidence of McGrath, but the court accepts that he made an honest attempt to answer everything put to him. He said he was troubled by Council’s attack on his integrity, and, in his “statement” sent to Council by May, he cited prominent State Parliamentarian, Hon Chris Hartcher MP, well-known to the court, as a character referee.
73. McGrath’s evidence is essentially that, after May told him he considered the tree was “dangerous” or “suspect”, he inspected the tree and noted his findings on a model hazard assessment form he had originally obtained at the National Arborists Association Seminar in 1997, and had used it regularly since. The form he says he completed on 28 November 2000 in respect of the tree was located during the adjournment of the hearing (Exhibit P12), and part of a blank form was also tendered (Exhibit P13). The copy put into evidence earlier in the hearing (Exhibit D1) had a “Hobbitt” header on it, and McGrath frankly conceded that he often used a blank letterhead (Exhibit D5) to make a composite photocopy when one of his reports was needed for some official purpose. McGrath repeatedly denied suggestions that Exhibit P12 was completed after 28 November 2000, especially that it was prepared only after Council asked the defendant to “show cause”.
74. The Prosecutor sought to make much of the fact that in neither his invoice for the job (Exhibit P14 fol 56), nor in his “statement” to the Council (Exhibit P11 Tab H), did McGrath make any mention of performing a hazard assessment, or of the assignment having involved “emergency work”. Such items appear on other invoices in McGrath’s invoice book (Exhibit P14).
75. The prosecutor also established that whereas McGrath said he “would have” given Exhibit P12 to May in early December 2000 (T117), May testified that he had not seen it before he responded to Council on 15 February 2001 (Exhibit P11 Tab H).
76. In support of his allegation of motive, the prosecutor questioned May on the development concept plans having been lodged at Council on the very day McGrath removed the tree, but the court accepts the evidence of May, Leslie and McGrath which indicates that the two operations – removal of the tree and pursuit of consent for redevelopment – were entirely separate on the defendant’s side of events.
77. The court also accepts McGrath’s evidence as to the condition of the tree in late November and early December, and as to its inability to recover, even had it been treated, prior to 25 January 2001. Ryan gave clear evidence that the tree deteriorated rapidly in the relevant period (see par 64).
78. In those circumstances the court finds that the prosecutor has failed to discharge its onus of proof; that the tree was “dead or dangerous… posing an immediate threat to life or property”; and that its removal was relevantly “exempt … works” not requiring consent from Council. The relevant provisions (see pars 14 and 22) must be given their ordinary meaning.
79. The court also accepts May’s evidence, as relevantly corroborated in part by Leslie, as to the circumstances of the defendant’s actions in respect of the land and the tree, and is, therefore, satisfied that the defendant made the relevant “honest and reasonable mistake of fact”. There is no evidence that he or anyone else in the defendant company turned their minds to the requirements of DCP 14, and relevantly decided to circumvent them. See State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721.
Conclusion
80. Accordingly, the defendant should be found not guilty, and the charge against it should be dismissed.
Costs
81. Counsel for the parties agree that costs should follow the event, and the court orders that the prosecutor pay the defendant’s just and reasonable costs.
82. The court is aware that there were some “settlement negotiations” (see correspondence in Exhibit D8 and Exhibit P16). In fact, the defendant foreshadowed (in Exhibit P16 and at the close of submissions) that, in the event of the charge being dismissed on the basis of success in defending it along the lines particularised in that pre-trial correspondence, it may seek an order for indemnity costs.
83. It may be that the question of costs can be successfully settled as between the parties, but I will make and stay the usual costs order so that the question of indemnity costs can be considered.
Orders
84. The formal orders of the court will be:
1. The defendant is found not guilty of the charge in the summons.
2. The summons is dismissed.
3. The prosecutor is ordered to pay the defendant’s just and reasonable costs, as agreed, or as assessed according to law, within 28 days of such agreement or assessment.
4. Order 3 is stayed for 21 days, and the defendant is granted liberty to apply on the question of costs.
All exhibits are returned.
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