Active Tree Services Pty Limited v Ku-ring-gai Municipal Council

ADI Limited v Environment Protection Authority [2000] NSWCCA 333; Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88; Baiada & Ors v Waste Recycling & Processing Service of NSW (1999) 130 LGERA 52; Director-General, Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242; DPP v United Telecaster Sydney Ltd (1990) 168 CLR 594; Environment Protection Authority v Attard [2000] NSWCCA 242; CASES CITED: Jones v Dunkel (1959) 101 CLR 298; Lowe v R (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295; R v Glasby (2000) 115 A Crim R 465; R v Ismunandar; R v Siregar (2002) 136 A Crim R 206; Thorneloe v Filipowski (2001) 52 NSWLR 60

APPELLANT: Mr A Djemel (barrister) SOLICITORS: Livingstone & Company Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr T Howard (barrister) SOLICITORS: Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

60001 of 2005 Active Tree Services Pty Limited v Ku-ring-gai Municipal Council

JUDGMENT 1 Her Honour: These are Class 6 proceedings brought by the Appellant against a conviction in the Local Court on 16 August 2004 and the penalty of $10,000 imposed on 13 December 2004.

2 Ku-ring-gai Municipal Council ("the Council") brought proceedings in the Local Court prosecuting the Appellant pursuant to s 127 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The charge was:

1. The defendant committed an offence under Section 125(1) of the Environmental Planning and Assessment Act 1979 in that the defendant did the following thing which he was forbidden to do by a Council authorised under the Environmental Planning and Assessment Act 1979 to forbid that thing to be done: The defendant, without obtaining consent of Council, did cut down a tree which was forbidden to be cut down by Ku-ring-gai Council under the Ku-ring-gai Council Tree Preservation Order, being an Order taken to have been duly made by Ku-ring-gai Council under the Ku-ring-gai Council Planning Scheme Ordinance pursuant to the power to protect and preserve trees under Section 26 of the Environmental Planning and Assessment Act 1979.

3 The place of the offence was 28 Chisholm Street, South Turramurra ("the site"). The summons stated that the tree that was cut down was "one mature Blackbutt, being greater than 25 metres in height which was located at the rear of the property of 28 Chisholm Street, South Turramurra near the boundary fence of the adjacent property at 24 Chisholm Street, South Turramurra".

4 This appeal arises pursuant to s 31 of the Crimes (Local Courts Appeal and Review) Act 2001 ("the Local Courts Appeal Act"). Pursuant to s 37 of the Local Courts Appeal Act, the appeal is heard by way of rehearing on the transcript of the proceedings which were before the Local Court.

5 The Class 6 Application states a brief outline of reasons for the appeal: (i) that the Magistrate erred in holding that the appellant bore an onus of proving that s 100C of the Rural Fire Act 1997 applied; (ii) that the Magistrate erred in holding that the appellant had not proven that s 100C of the Rural Fire Act applied; (iii) that the Magistrate erred in finding that the appellant required consent to carry out the activity the subject of the charge; and (iv) that the Magistrate erred in entering a conviction in the circumstances. Background 6 The relevant transcript and exhibits tendered before the Magistrate were also tendered in evidence before me. The site is owned and managed by the Department of Infrastructure, Planning and Natural Resources ("DIPNR"). In September 2002, DIPNR engaged Conacher Travers Pty Limited, bushfire and ecological management consultants, to undertake a "Review of Environment Factors, Hazard Reduction Activities at Chisholm Street, Turramurra" for proposed bushfire hazard reduction activities on the site ("the Conacher Travers report"). The report recommended various bushfire hazard reduction works to be undertaken by DIPNR. The Hornsby/Ku-ring-gai Bushfire Risk Management Plan was in force and in evidence.

7 On 18 March 2003, DIPNR engaged Jeff Martin Property Maintenance Pty Limited ("Jeff Martin Property") to carry out bushfire hazard reduction works at the site in accordance with the Conacher Travers report. The proposed works included the following: Creation of a 6 metre wide fire break along the north eastern boundary of the subject land approx 106 [sic]

Existing fuel is to be reduced by mechanical means such as a tritter machine or slasher.

All waste material to be removed from the land in an approved manner.

Land to be left on a condition so that it can be maintained in the future by mowing or slashing. 8 On 9 May 2003, Jeff Martin Property engaged the Appellant to carry out the removal of a number of trees on the site, including the cutting down of the subject tree.

9 The Council brought proceedings in the Local Court prosecuting the Appellant and Jeff Martin Property for committing an offence under s 125 of the EP&A Act. The Local Court convicted the Appellant and imposed a penalty of $10,000. The charge against Jeff Martin Property was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 ("the Crimes (Sentencing Procedure) Act").

10 The Appellant has lodged an appeal in this Court against both the conviction and the severity of the penalty imposed by the Local Court. Relevant provisions 11 Section 125 of the EP&A Act states: (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. … 12 Clause 42 of the Ku-ring-gai Planning Scheme Ordinance ("the KPSO") states: A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees specified in such order except with the consent of the responsible authority and any such consent may be given subject to such conditions as the responsible authority may think fit. 13 The Council's tree preservation order ("the TPO") stated the following: In accordance with Council's stewardship of natural heritage and commitment to the principles of Agenda 21 and to ensure the long term survival of Ku-ring-gai's treed landscape, a Tree Preservation Order applies to the whole of the area. The Order is particularly aimed towards the preservation of Ku-ring-gai's indigenous tree canopy. This prohibits the ringbarking, cutting down, topping, lopping, pruning, removing, injuring or wilful destruction of any tree having a height greater than 5 metres (16.4 feet) or a canopy spread of 4 metres (13 feet) except with written consent of Council unless the tree is exempt from the Order. Contravention of the Order can incur a penalty of $20,000.

14 Section 100C of the Rural Fires Act 1997 ("the Rural Fires Act") states: (1) An environmental planning instrument under the Environmental Planning and Assessment Act 1979 cannot prohibit, require development consent for or otherwise restrict the doing of: (a) emergency bush fire hazard reduction work on any land, or

(b) managed bush fire hazard reduction work on land other than excluded land. … (4) Bush fire hazard reduction work may be carried out on land despite any requirement for an approval, consent or other authorisation for the work made by the Native Vegetation Conservation Act 1997 , the Threatened Species Conservation Act 1995 , the National Parks and Wildlife Act 1974 or any other Act or instrument made under an Act if: (a) the work is carried out in accordance with a bush fire risk management plan that applies to the land, and (b) there is a bush fire hazard reduction certificate in force in respect of the work and the work is carried out in accordance with any conditions specified in the certificate, and (c) the work is carried out in accordance with the provisions of any bush fire code applying to the land specified in the certificate. 15 Section 100D of the Rural Fires Act provides a definition of "bush fire hazard certificate": A bush fire hazard reduction certificate is a certificate that authorises the carrying out of bush fire hazard reduction work on land in accordance with: (a) a bush fire risk management plan that applies to the land, and

(b) the provisions of any bush fire code applying to the land specified in the certificate, and

Appeal on the conviction The Appellant's submissions 16 The Appellant characterised the charge against it as follows. Clause 42 of the KPSO is authorised by s 26(1)(e) of the EP&A Act which provides that a local environmental plan may make provision for the protection or preservation of trees. A TPO pursuant to cl 42 of the KPSO operates by virtue of s 76A of the EP&A Act. Section 76A requires that development not be carried out without development consent and accordingly gives rise to the prohibition against cutting down trees in the TPO. The prohibition is enforceable pursuant to s 76A of the EP&A Act.

17 The Appellant submitted that a conviction should not have been entered in the Local Court proceedings on the basis that s 100C(1) of the Rural Fires Act provided an exemption to the offence created by cl 42 of the KPSO and the TPO. The Appellant argued that s 100C(1) of the Rural Fires Act prevented an environmental planning instrument from prohibiting or requiring development consent for bushfire hazard reduction work, and obviated the need to comply with, or even check for, any applicable environmental planning instrument. As the TPO was an order made pursuant to an environmental planning instrument s 100C(1) also applied to it because it states "or otherwise restricts the doing of …". Accordingly, the bushfire hazard reduction works, including the cutting down of the subject tree, did not constitute an offence pursuant to s 125 of the EP&A Act. The Appellant argued that as s 100C(1) is a specialised provision and s 76A is general, then s 100C(1) should be given priority applying a rule or statutory construction that the specific takes precedence over the general.

18 The Appellant argued that the Council had failed to prove one of the elements of the offence because it failed to prove beyond reasonable doubt that s 100C(1) of the Rural Fires Act does not render nugatory the prohibition contained in the TPO. The Appellant submitted that in the Local Court proceedings the Magistrate erred in finding that the Appellant bore a civil onus to prove that s 100C(1) of the Rural Fires Act applied as a defence to the charge. As the Council had not proven beyond reasonable doubt that a bushfire hazard reduction certificate had been issued pursuant to s 100D of the Rural Fires Act, and that s 100C(1) did not apply, a conviction should not have been entered.

19 In the alternative, the Appellant argued that if it did bear the onus of proving the defence under s 100C(1) of the Rural Fires Act it had discharged that onus. The Council's submissions 20 The Council submitted that the Appellant had misconstrued the charge under s 125 of the EP&A Act. It was not concerned with the requirement to obtain development consent, rather it was pursuant to the second "limb" of s 125. 21 The Council argued that s 100C(1) of the Rural Fires Act was not intended to operate as the Appellant argued. A TPO is not an environmental planning instrument and not subject to s 100C(1).

22 In the alternative, if s 100C(1) of the Rural Fires Act operated as a defence, the Council argued that the Magistrate did not err in finding that the Appellant bore the onus of proving a defence under s 100C(1). The Council argued that if s 100C(1) of the Rural Fires Act could operate as a statutory defence to s 125 of the EP&A Act the Appellant bore the onus of proving, on the balance of probabilities, that it applied.

23 The Council submitted that in any event, the Appellant had not discharged the onus it bore. DIPNR had not certified the works undertaken by the Appellant. On the contrary, the Council noted that DIPNR withheld payment of $3,850 to Jeff Martin Property on the express basis that the cutting down of the subject tree was outside the scope of the works commissioned for the site as indicated by letter from DIPNR to Jeff Martin Property. Finding - Appeal on the conviction 24 This Class 6 appeal requires that I come to a conclusion on the evidence before the Magistrate and the transcript that the Council has proved its case beyond reasonable doubt. It is not a de novo hearing. It is clear on the evidence that the Appellant was responsible for cutting down the subject tree that was located within the area covered by the TPO. Indeed the Appellant does not dispute that it did cut the tree down.

25 The Appellant has argued that s 100C(1) of the Rural Fires Act operates to prevent the operation of the TPO and the Council had the onus of proving that s 100C(1) did not apply in order for the "prohibition" against cutting down trees in the TPO to operate.

Purpose of s 100C(1) of the Rural Fires Act/relationship to TPO 26 It is clear from the drafting of s 100C(1) that it does not apply at all to this or any TPO. It is directed at the making of environmental planning instruments under the EP&A Act, which a TPO is not. Environmental planning instrument is defined under the EP&A Act as: … a State environmental planning policy, a regional environmental plan, or a local environmental plan, and except where otherwise expressly provided by this Act, includes a deemed environmental planning instrument.

27 I agree with the Council's submission that essentially the Appellant's unstated argument was directed at an argument that the TPO and cl 42 of the KPSO are ultra vires. Until these are declared invalid they must operate according to their terms.

28 The Council argued that it could not have been Parliament's intention in s 100C(1) of the Rural Fires Act to create a defence to offences for breaches of TPOs, with which submission I agree. If the Appellant's contentions were correct, then the whole scheme for preservation of trees in Ku-ring-gai would be rendered unenforceable. This is because the removal of any tree, being a reduction in fuel load, could be said to fall within the definition of "managed bushfire hazard reduction work" pursuant to s 100C(1) and so preclude the enforcement of any TPO.

Section 100C(1) of the Rural Fires Act is not a statutory defence 29 Section 100C(1) cannot operate as a statutory defence to a charge of contravening a TPO. That is clear from its wording. The scheme of the Rural Fires Act in s 100C(4) and s 100D suggests that it is necessary for a bushfire hazard reduction certificate to be issued before bushfire hazard reduction works may be carried out on a particular site. Once such a certificate has been issued then s 100C(4) can operate and it states: Bushfire hazard reduction work may be carried out on land despite any requirement for approval … by any other Act or instrument made under an Act …

30 The Appellant did not rely on s 100C(4) in its arguments, but focused on s 100C(1). Section 100G sets out requirements the certifying authority must meet before it can issue a bushfire hazard reduction certificate. I reject the Appellant's argument that there is no need for a formal document to constitute the bushfire hazard reduction certificate.

Onus of proof 31 In my view, to prove that the Appellant has breached its obligation under the TPO the Council is not required to establish that s 100C(1) or other more relevant sections of the Rural Fires Act do not apply. If s 100C(1) or other sections of the Rural Fires Act did constitute an exception from the prohibition contained in the TPO, the onus of proving that exception falls on the Appellant. The Appellant, relying on Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88, argued that if a statute relies on an obligation which has an exception or proviso, who bears the burden of proof depends on whether it is part of the prohibition. The Appellant argued here that the exception in s 100C(1) of the Rural Fires Act was part of the prohibition sought to be enforced under the TPO.

32 Two cases were relied on by the Appellant. Director-General, Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242 concerned a statutory qualification of one of the elements of the offence under the Native Vegetation Conservation Act ("the NVC Act"). The Court of Criminal Appeal held that it was for the Prosecutor to establish that the NVC Act applied. In Baiada & Ors v Waste Recycling & Processing Service of NSW (1999) 130 LGERA 52 the Court of Appeal considered whether the Respondent had undertaken development without consent pursuant to s 76A of the EP&A Act. Mason P held at 64 that the Appellant bore the onus of proving that no development consent was given to the Respondent. This case in fact supports the Council which proved in the Local Court that no development consent had been issued. I do not consider that these cases are in any way analogous to the statutory circumstances here where the exception or proviso the Appellant seeks to rely on is in an Act other than that under which the Prosecutor has taken action and there is no specific statement in s 100C(1) suggesting it applies to prosecutions under the EP&A Act.

33 In accordance with DPP v United Telecaster Sydney Ltd (1990) 168 CLR 594 per Toohey and McHugh JJ at 611, relied on in ADI Limited v Environment Protection Authority [2000] NSWCCA 333, the burden of proof concerning an exception falls on the party seeking to rely on the exception where the statutory context makes clear there is an exception to a charge. The exception, if it existed, in s 100C(1) of the Rural Fires Act is not part of the substantive obligation the Council is seeking to enforce in its prosecution under the EP&A Act and is not therefore a matter which falls to the Prosecutor to prove as part of the elements of the offence.

34 I consider the situation in ADI is more analogous to this case. Foster AJA (with whom Adams J and Smart AJ agreed) held at [18] to [19] that the Defendant on a charge of water pollution bore the onus of proving that admitted pollution was permitted by the terms of its licence.

35 In relation to whether the Appellant had discharged the onus, its written submissions suggested that it had because of the Hornsby/Ku-ring-gai Bushfire Management Plan which was in evidence before the Local Court. In its oral argument it suggested however that a bushfire hazard reduction certificate issued under s 100D was necessary, the first time this argument was made in either this Court or the Local Court proceedings. No specific certificate was in the evidence. The Appellant argued that the letter of engagement and work order provided by DIPNR to Jeff Martin Property suggested that a bushfire hazard reduction certificate had been issued by DIPNR pursuant to s 100D of the Rural Fires Act. In the absence of any evidence from DIPNR as to the evidence of a certificate, the Appellant argued that the Court should draw an inference adverse to the Prosecutor that there was a bushfire hazard reduction certificate issued by DIPNR, applying Jones v Dunkel (1959) 101 CLR 298.

36 Given my finding that the Appellant bears the onus of proof I do not draw any adverse inference pursuant to Jones v Dunkel in relation to the Council's case such as the Appellant urged. It has not discharged the onus of proof it bears.

37 Accordingly, I find that contrary to s 125 of the EP&A Act, the Appellant did cut down a tree which was forbidden to be cut down by the Council under its TPO. The Appellant is unsuccessful on its first three grounds of appeal.

38 Given my findings I do not need to consider the Council's argument that the charge relied on the second "limb" of s 125 of the EP&A Act and therefore whether s 76A of the EP&A Act applies at all in requiring that development consent be obtained under the TPO before cutting down a tree. Appeal on the sentencing The Appellant's submissions 39 The Appellant also appealed the Local Court proceedings on the basis that the Magistrate erred in giving the Appellant a disparate penalty to its co-defendant, Jeff Martin Property. The Appellant submitted that on the evidence, the difference between the sentences imposed on the co-defendants was not explicable. The Appellant argued that as it was not in contact with DIPNR, it was unaware that consent had not been given by the Council to breach the TPO, it was never informed of the contents of the Conacher Travers report to DIPNR which formed the basis of the bushfire hazard reduction work, and it was unaware of any limitations placed on bushfire hazard reduction works by DIPNR. The Appellant also relied on the oral evidence of Mr James Staader, the operations co-ordinator of Jeff Martin Property, in the Local Court proceedings. Mr Staader gave evidence of a conversation he had with Ms Rosa Pangallo, Senior Property Office of DIPNR, where she stated that permission was not required to carry out the proposed works. Accordingly, it was not appropriate in these circumstances that there should be disparity between the co-defendants.

40 The Appellant argued that as Jeff Martin Property received the benefit of a dismissal pursuant to s 10 of the Crimes (Sentencing Procedure) Act the disparity between the two sentences gave rise to a "justifiable sense of grievance" and the Appellant was entitled to receive the benefit of a s 10 dismissal or a reduction in penalty. The Council's submissions 41 The Council submitted that on the basis of the evidence the Magistrate was justified in imposing different sentences on the two offenders. The Council noted that in contrast to Jeff Martin Property, the Appellant had significant experience in tree removal and therefore should have been aware that the consent of the Council was required before removal of the subject tree. The Council was, therefore, in a better position to understand that it was required to obtain written consent from the Council, and that consent given by Mr Staader to Mr Pangallo was insufficient to constitute lawful consent. The Council also noted that the Appellant had breached its own standard operating procedures, which required it to obtain council approval details before commencing works.

42 If the Court considered that there was a genuine disparity between the sentences which is not justifiable on the basis of different degrees of culpability, the Council submitted that the Court should not adopt the principle of parity because of the manifest inadequacy of the s 10 dismissal granted to Jeff Martin Property. In the circumstances of this case, the Council argued that it would be clearly inappropriate to give the Appellant the benefit of a dismissal pursuant to s 10 of the Crimes (Sentencing Procedure) Act or to reduce the fine imposed. The Council argued that this was not a trivial matter as the subject tree was a significant tree that formed part of the indigenous canopy and was in an area identified as having potential habitat for a number of rare and endangered species. The Council also submitted that the Appellant had shown no contrition and noted that in accordance with the Court of Criminal Appeal decision in Thorneloe v Filipowski (2001) 52 NSWLR 60 it is only in rare cases that dismissal pursuant to s 10 will be appropriate.

43 Relying on R v Glasby (2000) 115 A Crim R 465 and R v Ismunandar; R v Siregar (2002) 136 A Crim R 206 the Council argued that there was not a "justifiable sense of grievance" on behalf of the Appellant because the Magistrate was wrong in exercising leniency towards Jeff Martin Property. In the circumstances, the Court should not reduce the penalty imposed on the Appellant. Repeating the error of the Magistrate in the Local Court would be as much as an affront to justice as if the principle of parity was breached. Finding - Appeal on the sentencing 44 The Council argued firstly that there was justifiable disparity between the two co-defendants but it does not appear to me that their respective situations are so relevantly different that the different sentences imposed are justified. It follows that I must consider whether the principle of parity demands that I change the penalty of the Appellant.

45 In Lowe v R (1984) 154 CLR 606, Gibbs CJ stated at 610 that: It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. 46 In Postiglione v R (1997) 189 CLR 295, Dawson and Gaudron JJ at 301 elaborated on the parity principle set out in Lowe: The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

47 As is made clear in Ismunandar, however, there are other considerations in determining whether there is a "justifiable sense of grievance". In that case, the Court of Criminal Appeal at [38] considered that while disparity and inconsistency in punishment may lead to an erosion of public confidence in the administration of justice, the multiplication of manifest errors can also be seen to lead to the erosion of public confidence in the administration of justice. On that basis the Court of Criminal Appeal considered that it was inappropriate to reduce the sentence of the defendant on the basis that the lower court erred in applying greater leniency to his co-defendant.

48 Several cases have made it clear that s 10 of the Crimes (Sentencing Procedure) Act (and its predecessor s 556A of the Crimes Act 1900) is rarely applied in environmental cases. In Environment Protection Authority v Attard [2000] NSWCCA 242, Sperling J (with whom Mason P and Smart AJ agreed) stated at [5] that s 556A would only be applied in exceptional circumstances. That case was a prosecution under the Clean Waters Act 1970. In Thorneloe, Spigelman CJ at 74 adopted the same position in the context of s 10 of the Crimes (Sentencing Procedure) Act.

49 In this case an experienced business operator, which must be very familiar with the Council's controls on cutting down trees, has failed to follow its procedures to ensure that the Council's approval was obtained. I consider there is an obligation on such a business to ensure that all relevant controls are complied with. On the evidence presented, I also consider that the matter is not a trivial one. The TPO states that it is particularly aimed towards "the preservation of Ku-ring-gai's indigenous tree canopy". The subject tree was a healthy specimen forming part of the indigenous tree canopy and as stated in the Conacher Travers report had the potential to provide habitat for a number of rare and endangered species in an environmentally sensitive area.

50 I consider that it would be inappropriate to reduce the penalty imposed on the Appellant in favour of achieving parity between it and Jeff Martin Property. In the present circumstances, any sense of grievance arising from the maintenance of the existing sentences is not justifiable because in my view the Magistrate in the Local Court proceedings was unjustifiably lenient to Jeff Martin Property. If I were to reduce the penalty imposed upon the Appellant to bring it in line with Jeff Martin Property the outcome would be an affront to the proper administration of justice. The Appellant is unsuccessful on its fourth ground of appeal. Orders 51 The Court makes the following orders:

1. That the Class 6 Application is dismissed;
2. That the conviction entered in the Local Court is confirmed;
3. That the penalty imposed by the Local Court is confirmed.

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