Anthony Tauszik v Gosford City Council [2006] NSWCCA 193 | Case summary

Anthony Tauszik v Gosford City Council [2006] NSWCCA 193 | Case summary | Zoe

Wednesday 5 July 2006 ANTHONY JOHN TAUSZIK v GOSFORD CITY COUNCIL Judgment 1 TOBIAS JA: The respondent, Gosford City Council (the Council), filed a summons in Class 5 of the jurisdiction of the Land and Environment Court on 16 January 2003 requiring the appellant, Anthony John Tauszik, to appear before a judge of the Court to answer the following charge: "That on 14 June 2002 at Pearl Beach in New South Wales he committed an offence against Section 125 of the Environmental Planning and Assessment Act 1979 in that he did, without obtaining the consent of the Prosecutor, carry out development in that he did cut down, remove, injure and wilfully destroy three trees on Lot 308 DP 14592 being 6 Pearl Parade, Pearl Beach in the State of New South Wales, the carrying out of which development without such consent was forbidden to be done by Clause 44 of the Gosford Planning Scheme Ordinance." 2 The summons set out the following particulars of the alleged offence: "The [appellant] did cut down, remove, injure and wilfully destroy three Norfolk Island Pine trees, each approximately of 12 metres in height which cutting down, removal, injury and wilful destruction was forbidden by the Gosford City Council Tree Preservation Order being an Order made pursuant to the provisions of an Environmental Planning Instrument for the purposes of the Environmental Planning and Assessment Act 1979 namely Clause 44 of the Gosford Planning Scheme Ordinance." 3 On 23 September 2003 the appellant filed a Notice of Motion in the Land and Environment Court seeking an order that the summons be struck out upon the ground that the offence charged was statute barred by s127(5) of the Environmental Planning and Assessment Act 1979 (the EPA Act) because the proceedings charging the offence were commenced more than six months after the offence was alleged to have been committed. 4 The notice of motion was heard by Pain J. On 19 December 2003, her Honour held that the proceedings were not statute barred: Gosford City Council v Tauszik [2003] NSWLEC 354. 5 The substantive hearing of the summons commenced on 28 February 2005 before McClellan CJ (as he then was). His Honour declined an application to review the decision of Pain J on the basis that any such review of her Honour's interlocutory decision was misconceived and that the proper course for the appellant would be to appeal to the Court of Criminal Appeal. Accordingly, the Chief Judge proceeded on the basis that the issues raised by the summons fell for determination by his Honour having regard to Pain J's earlier decision. 6 In any event, the Chief Judge was of the view (at [28]) that Pain J was correct in her approach to and construction of the relevant provisions of the EPA Act and the Gosford Planning Scheme Ordinance (the Ordinance). Therefore, he was not prepared to depart from her determination of the issue with which she was concerned. 7 The matter then proceeded before the Chief Judge who ultimately found the offence proved in respect of two of the three trees that were the subject of the charge: Gosford City Council v Tauszik [2005] NSWLEC 183. The appellant was formally convicted on 22 April 2005. His Honour imposed a fine in the sum of $25,000 together with other consequential orders including an order that the appellant to pay the Council's costs of the proceedings including the interlocutory proceedings before Pain J: see Gosford City Council v Tauszik [2005] NSWLEC 266. The appellant does not challenge the penalty imposed by the Chief Judge except to the extent to which a reconsideration of that penalty and the consequential orders would become necessary in the event that this Court allowed the appellant's appeal with respect to only one of the two trees the subject of his conviction. 8 The appellant has, however, appealed to this Court against his conviction with respect to the cutting down of both trees. That appeal lies to this Court by the combined operation of ss5AA and 5AB of the Criminal Appeal Act 1912.

The relevant legislative and delegated legislative provisions 9 It was common ground that the appellant was charged with an offence created by s125(1) of the EPA Act. That provision is, relevantly, in the following terms: "Where any matter or thing is by or under this Act … forbidden to be done, or where … a council … is authorised by or under this Act … to forbid any matter or thing to be done, and that matter or thing … if so forbidden to be done is done, the person offending against that … prohibition shall be guilty of an offence against this Act." 10 It was also common ground that there were two limbs to s125(1): cf Chin v Ryde City Council (2004) 133 LGERA 312 at 317 [24]-[25]. The first was constituted by that part of the section which stated that: "Where any matter or thing is by or under this Act … forbidden to be done … and that matter or thing … is done, a person offending against that … prohibition shall be guilty of an offence under this Act." 11 The second was constituted by that part of s125(1) which stated that: "[w]here … a council … is authorised by or under this Act … to forbid any matter or thing to be done, and that matter or thing … is done, a person offending against that … prohibition shall be guilty of an offence against this Act." 12 It was further common ground that, for the purposes of this appeal, the legal significance of the distinction between the two limbs of s125(1) related to the limitation period applicable to the offence created by each limb. In particular, if an offence fell within the second limb of s125(1), a six month limitation period applied pursuant to s127(5) of the EPA Act. In the present case, this would mean that the proceedings instituted by the summons were statute barred. 13 On the other hand, if the subject offence fell within the first limb of s125(1), then a 12 month limitation period applied pursuant to s127(6)(a) of the EPA Act, in which event the proceedings instituted by the summons were not statute barred. 14 At the date the summons was filed, s127(5)-(6) was relevantly in the following terms: "(5) Proceedings in the Court in its summary jurisdiction in respect of an offence against this Act may be commenced not later than 6 months after the offence was alleged to be committed, except as provided by subsection (6). (6) Proceedings for the following offences may be instituted at any time within the period specified in relation to the offence: (a) carrying out development … for which development consent is required without obtaining development consent - 12 months after the offence is alleged to have been committed … " 15 It was apparent from the manner in which the charge was framed that it was intended to allege that the appellant carried out development without obtaining development consent, thus attracting the 12 month limitation period provided by s127(6)(a). It was common ground that for that limitation period to apply, the offence with which the appellant was charged was required to allege a "matter or thing" which was "by or under this Act … forbidden to be done". Relevantly, the only provision of the EPA Act which, it was alleged, forbade the appellant's conduct was s76A(1)(a), which provided as follows: "(1) If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force …" 16 Accordingly, for the prosecution to succeed, it had to prove that:

Schedule 1 to the order listed some 18 species of tree. 23 At a meeting held on 16 June 1987, the Council considered a recommendation from its Chief Town Planner that it adopt a revised tree preservation order pursuant to clause 44 of the Ordinance. This revised order was to apply to the same land as that referred to in clause 3 of the 1985 order. 24 The recommendation was in the following terms: "That the Council adopt the tree preservation order as set out in Attachment 1 to the Draft Policy and publish notice of the resolution in the Government Gazette as required under the provisions of the relevant planning instruments" 25 Clauses 1, 2, 3 and 5 of the tree preservation order referred to in Attachment 1 (the 1987 order) were, for all intents and purposes, in identical terms to clauses 1 to 4 (inclusive) of the 1985 order. Clause 4 of the 1987 order provided that it was to apply to all trees and categories of trees listed in the Council's Register of Significant Trees irrespective of their height. Clause 6 applied the order to the underscrubbing of vegetation on land situated in certain zones under the planning instruments referred to in clause 3. Schedule 1 to the 1987 order was in identical terms to Schedule 1 of the 1985 order, with some minor immaterial differences. 26 However, it was common ground that the 1987 order, although made by resolution of the Council, was not published in the Government Gazette or in a newspaper circulating in the relevant area and so failed to comply with clause 44(4) of the Ordinance. It was also common ground that compliance with that provision was a condition precedent to the coming into force of the tree preservation order to which it applied. I refer to the 1987 order as it was the foundation for a submission by the appellant both before the Chief Judge and this Court. The appellant contended that, notwithstanding that the 1987 order never came into force because of the failure of the Council to comply with clause 44(4) of the Ordinance, it had nonetheless caused the 1985 order to be impliedly rescinded. As a consequence of the recision of the 1985 order, and the effective absence of a new order, the cutting down of the trees by the appellant was not prohibited by any tree preservation order which was operative and in force at the relevant time. I shall return to this contention later in these reasons.

The findings of the Chief Judge with respect to the facts 27 As the Chief Judge observed (at [16]), the basic facts in the matter were not in dispute. I therefore adopt his Honour's summary of them: "16 … The [appellant] accepts that on the relevant day he arranged for three trees at the front of his property at Pearl Beach to be cut down. The trees were Norfolk Island Pines, each of about twenty four metres in height and appear to have been planted at the same time many years ago. The three trees were the central trees to a row of five. The northernmost tree was not interfered with, nor was the southernmost tree. The three trees which were taken down were planted within no more than two metres of each other and would have formed a dense foliage which would have been likely to obstruct views from the [appellant's] two storey dwelling. The dwelling house looks to the east through where the trees were previously located, out to Broken Bay. The beach at Pearl Beach is on the eastern side of the roadway which lies between the beach and the defendant's property." 28 Although the basic facts were not in dispute, one significant issue of fact was contested. It arose out of the adoption by the Council of a Landscape and Vegetation Management Policy (the Policy) which, by clause 6.1, provided as follows: "Removal of trees: Council consent may be assumed for removal of trees within three (3) metres of any approved building, provided a particular tree is not on schedule 1 of the Tree Preservation Order, and if it is, then the individual case be reviewed on its merit to determine if removal would be appropriate." 29 As his Honour observed, the Policy did not provide a definition of "approved building". However, the Council accepted that, in the circumstances of this case, a dwelling house would so qualify. 30 The nearest dwelling house to the removed trees was known as No 7 Pearl Parade, which was the property immediately to the north of that owned by the appellant. For the purpose of the proceedings, the Council also accepted that the appellant would be entitled to rely upon its assumed consent under clause 6.1, and that the prosecution would therefore fail unless it could establish beyond reasonable doubt that the location of the trees that the appellant removed were not within three metres of the dwelling house at No 7 Pearl Parade. 31 As the Chief Judge recognised at [33], clause 6.1 was not free from ambiguity in terms of the point from which the distance of three metres was to be measured. However, his Honour found it unnecessary to provide a definitive answer to the various options which were advanced in argument. Instead, his Honour accepted (at [34]) that any ambiguity should be resolved against the Council and in favour of the person who sought to rely upon the Policy as containing a concession to what would otherwise constitute a control that provided for a criminal offence. 32 For present purposes, it is sufficient to note that the Chief Judge accepted (at [39]) that although it was not necessary that the distance of three metres be measured from the trunk of the relevant tree (whether from a point on its circumference or from its centre), it would not necessarily be sufficient if only one particularly vigorous branch of the tree was within the three metre limit. However, his Honour considered (at [37]) that a number of branches within the three metre limit would satisfy the requirement and would, therefore, enliven the assumed consent by the Council as to the removal of the tree of which they were part. 33 Accordingly, his Honour turned to consider the factual issue that arose as to whether a number of its branches of each of the three trees that were the subject of the charge were within three metres of the dwelling house at No 7 Pearl Parade. His Honour dealt with this issue in detail at [42] to [86] of his judgment. In summary, his Honour accepted the evidence of Mr Dawkins (the contractor engaged by the appellant to remove the trees) as deposed in paragraphs 10, 11 and 12 of his affidavit. Mr Dawkins there stated, firstly, that the northernmost tree removed (which Mr Dawkins designated as Tree B) had no branches that extended towards the dwelling house at No 7 Pearl Parade and that came any closer to that dwelling than the trunk of the northernmost tree closest to that dwelling and which was not removed (which Mr Dawkins designated as Tree A). However, there were branches from Tree B that reached towards No 7 Pearl Parade and which extended to within three metres of that dwelling. Secondly, Mr Dawkins deposed evidence in respect of the other two trees which he removed, and which he respectively identified as Tree C and Tree D and which stood to the south of Tree B. He stated that no branch of either of those trees came anywhere near the dwelling house at No 7 Pearl Parade in that their branches did not extend to a point which was less than three metres from that building. 34 At [46] of his judgment, the Chief Judge set out at length the cross-examination of Mr Dawkins with respect to his recollection of the trees that he had cut down, with particular reference to paragraphs 10, 11 and 12 of his affidavit. In that cross-examination, Mr Dawkins accepted that he had not measured the length of any of the branches before he cut down the three trees although his rough estimate was that they were probably 15 feet in length as an average, some being longer and some shorter. 35 Notwithstanding this challenge to Mr Dawkins' recollection of the length of any particular branch, the Chief Judge observed at [47] that Mr Dawkins was not challenged as to his statement that the distance of the branches of Trees C and D from the adjoining dwelling was well in excess of three metres. Notwithstanding the criticisms that were made of Mr Dawkins' evidence, his Honour concluded at [48] that he was satisfied that Mr Dawkins' evidence should be accepted insofar as it related to his observation of the distance of the three trees from the adjoining dwelling house at No 7 Pearl Parade. 36 Both the Council and the appellant called experts in arboriculture who carried out measurements of the distance between the remaining stumps of the three trees and the adjoining dwelling house. Each expert gave an opinion as to the likely reach of the branches of those trees. His Honour also referred (at [67]) to a letter from the appellant to the Council dated 26 July 2002 in which he had pointed out that due to the very close planting of the trees, their natural sunlight and access to soil and nutrients had been impeded and that they were becoming very poor and unhealthy specimens. The appellant described the trees in that letter as being in a "weakened condition from lack of sunlight and nutrients". 37 Mr Machin was the expert who gave evidence for the Council and Mr Ford was the expert called on behalf of the appellant. His Honour noted at [53] that both experts were in agreement as to the distance of the northernmost removed tree (referred to by Mr Dawkins as Tree B) from the adjoining dwelling house. The stump of that tree had been measured as being just over three metres distance from the nearest point of that dwelling. Accordingly, having regard to that evidence and that of Mr Dawkins, his Honour was not satisfied that Tree B was located outside the three metre limit in respect of which the Council's consent to its removal could be assumed. He therefore found the offence had not been proven with respect to that tree. 38 With respect to Mr Dawkins' Tree C, which was the middle of the three removed trees, Mr Machin measured its trunk as being 5.3 metres to the nearest point three metres from the adjoining dwelling house whereas, with respect to the southernmost removed tree being Mr Dawkins' Tree D, he measured its trunk as being 7.6 metres from the same point. Given those distances, the question was whether some of the branches of Tree C extended more than 5.3 metres towards the point three metres from the adjoining dwelling and, in respect of Tree D, whether any of its branches extended more than 7.6 metres to the same point. 39 In order for the branches of Trees C and D to have extended the required distance so as to intrude into the three metre distance from the adjoining dwelling house, it was necessary for the relevant branches of Tree C to have extended through the branches of Tree B and for those of Tree D to have extended through the branches of Trees B and C. According to the Chief Judge (at [59]), because the sunlight to the three removed trees must have been impeded by Mr Dawkins' Tree A to their north, Mr Machin's opinion was that it "was not possible" that Trees C and D would have had the opportunity to send their branches in a north/north-westerly direction through Tree B to within three metres of the adjoining dwelling house. 40 In support of that opinion, his Honour referred (at [60]) to photographic evidence of the condition of the southernmost tree, which had not been cut down. Mr Machin observed that the limbs on the northern side of this tree were significantly diminished. This, he concluded, was a consequence of the denial of sunlight from the north caused by the physical barrier which would have been presented by the trunk and limbs of Tree D. 41 Accordingly, the Chief Judge found at [61] that: "[t]he opinion of Mr Machin is, of course, consistent with the comments of the [appellant] in the letter of 26 July 2002. Mr Machin's opinion is also consistent with the evidence of Mr Dawkins to which I have earlier referred. And, importantly, his opinion is clearly consistent with the evidence available from the photographs of the remaining trees." 42 At [63], his Honour observed that Mr Machin was a convincing witness and that his evidence was consistent with the known facts. His Honour accepted that Trees C and D may have provided for their healthy growth by sending limbs to the east and the west. However, for them to have grown in the direction of the adjoining dwelling house, their limbs would have had to have extended in a north/north-west direction, where the limbs of the adjoining trees would have interfered with sunlight and their physical capacity to grow. His Honour thus concluded in these terms (at [65]): "However, I am completely satisfied that although some of the limbs of the trees [C] and [D] may have intruded into the limbs of the tree to their immediate north [tree B], the competition for sunlight and nutrients from the close planting of the trees would have precluded any opportunity for their limbs to have extended to within three metres of the adjoining property." 43 For reasons his Honour then identified, he held at [66] that the evidence of Mr Ford, the expert called on behalf of the appellant, could not be relied upon. He was therefore satisfied beyond reasonable doubt that the Council had established that its assumed consent under clause 6.1 of the Policy had no application to Trees C and D. 44 I now turn to the relevant issues on the appeal.

within the meaning of the chapeau to s76A(1) of the EPA Act. 47 The appellant submitted both before Pain J and this Court that, contrary to the assertion in the wording of the offence charged, clause 44 of the Ordinance did not so provide. Rather, it was contended, the clause was no more than an enabling provision which empowered the Council to make, by resolution, a tree preservation order which might or might not contain a prohibition against the cutting down of the trees to which it applied without consent. 48 Accordingly, so the appellant argued, it would require an elaborate or artificial interpretation of clause 44 to conclude that its terms provided for the cutting down of trees not to be carried out except with development consent. Rather, the principal purpose and effect of clause 44 was to empower the Council to prohibit or otherwise regulate the cutting down etc of trees by making a tree preservation order pursuant to clause 44(1). Clauses 44(2) and 44(3) merely defined the ambit of any such order which, by clause 44(4), required publication in the specified manner for it to become operative. 49 So considered, it was clear from the terms of clause 44 that it literally fell within the words of the second limb of s125(1) of the EPA Act in that, by the making of a tree preservation order, it expressly authorised the Council to forbid a matter or thing to be done, namely, the cutting down etc, of trees. There could be no doubt, therefore, that in terms of the second limb of s125(1) the Council was, by clause 44 of the Ordinance, authorised "under this Act" to forbid the proscribed conduct by the making of a tree preservation order. But it was the tree preservation order that forbade that conduct, not clause 44 of the Ordinance. 50 On the other hand, for the first limb of s125(1) to apply, it was necessary for clause 44, being a provision in an Ordinance which was an environmental planning instrument for the purposes of s76A(1), to forbid the proscribed conduct. This it did not do. 51 Nevertheless, in her interlocutory judgment Pain J upheld the Council's contrary submission that clause 44(5) of the Ordinance contained a prohibition against the contravention of a tree preservation order so that s76A(1) applied and the offence charged fell within s127(6)(a). 52 Her Honour noted that the decision of Lloyd J in Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 was relied upon to support that proposition. In particular, the Council submitted that Cameron was authority for the proposition that where an environmental planning instrument contained a provision that made it an offence to contravene a tree preservation order (such as clause 44(5) of the Ordinance), any such contravention would constitute a breach of the EPA Act. Section 76A(1) was therefore engaged. 53 Cameron was also relied upon to establish the proposition that the cutting down of a tree contrary to a tree preservation order was "development" within the meaning of the definition of that word in s4(1) of the EPA Act. This was because the word "development" was defined to mean, inter alia, "(f) any other act, matter or thing referred to in s26 that is controlled by an environmental planning instrument"

and s26(1)(e) referred to " protecting or preserving trees or vegetation ". 54 Further, s4(1) of the EPA Act contained an extended definition of "control", which was defined to mean, inter alia, the conferral on a consent authority of functions with respect to consenting to, permitting, regulating, restricting or prohibiting development or any other act, matter or thing either unconditionally or subject to conditions. Accordingly, the cutting down of trees was an act with respect to the protecting or preserving of trees in respect of which clause 44 of the Ordinance conferred functions on the Council with respect to consenting to and prohibiting any such act. The latter was, therefore, "development" as defined. 55 In considering the submissions of the parties, Pain J indicated her agreement with the reasoning of Lloyd J in Cameron. As a consequence, her Honour held at [24] that "[t]he prohibition against the contravention of the TPO appears here in the ordinance and therefore the TPO is 'development' as defined in section 4 of the EP&A Act as it is a matter controlled by an environmental planning instrument. A breach of the TPO and ordinance which is a failure to obtain consent to cut down trees in this context is a failure to obtain development consent and is a breach of the EP&A Act to which section 76A applies." 56 When determining whether the subject offence fell within the first or second limb of s125(1) of the EPA Act, her Honour concluded at [27] that "[a] charge under the first category of section 125(1) requires that this be either a matter or thing forbidden 'by or under the Act' (i.e. development requiring development consent). The second category is something a council can forbid pursuant to the EP&A Act but not by or under the EP&A Act. I have already found that section 76A applies to a breach of the TPO and the ordinance, consequently it follows that an offence under the TPO and the ordinance is an offence under the first category of s125(1) as it is a matter forbidden ' by or under this Act '." 57 With respect, I find some confusion in those parts of [24] and [27] of her Honour's judgment that I have set out above. So far as the former is concerned, it would appear that she considered that clause 44(5), which makes it an offence to contravene a tree preservation order, is also to be construed as a prohibition against the contravention of such an order with the result that a breach of the order is a breach of the Ordinance and, therefore, a breach of s76A(1). The difficulty with this reasoning is that it assumes, wrongly in my respectful opinion, that clause 44(5) of the Ordinance contains the very prohibition which clause 44(2) empowers the Council to include in a tree preservation order which, by resolution, it may make pursuant to clause 44(1). 58 As to [27] of her Honour's judgment, it would appear that she intended by the first sentence to say, in my view correctly, that the first limb of s125(1) required that a matter or thing be forbidden "by or under [the] Act", that is, by a provision of the Act itself (such as s76A(11) or by an environmental planning instrument which is made "under [the] Act". However, her Honour then asserts that the second limb related to something that a council could forbid pursuant to the EPA Act "but not by or under the Act". This is contrary to the very words of the second limb which refer to a council being authorised "by or under this Act" to forbid any matter or thing to be done. The last sentence of [27] is a repetition of her Honour's finding in [24] and suffers from the same flawed reasoning. 59 As I have already observed, the Chief Judge was of the opinion that Pain J was correct in her reasons for concluding that the subject offence fell within the first limb of s125(1). His Honour noted at [23] that Pain J had found that, as a consequence of the operation of a tree preservation order which prohibited the cutting down of the relevant trees, clause 44(5) "contains a prohibition, being a prohibition made in a Planning Scheme Ordinance which is a deemed instrument"

One looks in vain at clause 44 of the Ordinance for such a provision. 62 In its submissions, the Council contended that the proper enquiry was to identify the source of the prohibition of the conduct charged. Was it to be found in clause 44 of the Ordinance or in the 1985 order made pursuant to clause 44(1)? The Council accepted that the subject offence could only fall within the first limb of s125(1) if s76A(1) applied so that "[i]f an environmental planning instrument specifies something which is development under the Act and provides that the development may not be carried out without what amounts to development consent, then anyone breaching that provision breaches sub-s 76(A)(1) and commits the offence created by the first limb of sub-s 125(1)." (Emphasis added.) 63 The critical question, therefore, was whether clause 44 "provides that the development constituted by the cutting down of trees may not be carried out without development consent": see [19] above. The Council had no option but to submit that in the context of clause 44(2) of the Ordinance, clause 44(5) (and only that sub-clause) so provided. 64 In Cameron, a tree preservation order was made pursuant to clause 8 of the Model Provisions. That provision was in identical terms to clause 44 of the Ordinance. As I have already noted, Lloyd J held that the cutting down and removal of trees constituted the carrying out of development that required development consent under the EPA Act. Nevertheless, it was argued in that case on behalf of the Council that the relevant environmental planning instrument merely enabled the council in that case to make a tree preservation order. Further, it was contended that the prohibition against the cutting down of trees except with the consent of the council was controlled by the tree preservation order and not by clause 8 of the Model Provisions as incorporated into the relevant environmental planning instrument; and that a tree preservation order was not itself an environmental planning instrument. The foregoing encapsulated the appellant's argument in the present case. 65 Accordingly, it was submitted in Cameron that since the cutting down of trees was not controlled by an environmental planning instrument, it did not fall within the definition of "development". Therefore, the cutting down of trees could not be the subject of a development application to which an appeal under s97 of the EPA Act could apply. 66 These submissions were rejected by Lloyd J on the basis that the cutting down of trees constituted "development" as it was an act, matter or thing referred to in s26(1)(e) that was "controlled" by an environmental planning instrument, given the extended definition of "control" in s4(1). This may be so (and was accepted by the appellant for the purpose of the appeal), but it does not provide an answer to the crucial question of whether that development was prohibited without consent by clause 44 of the Ordinance. 67 In the course of his judgment in Cameron, Lloyd J referred to the decision of Bignold J in Hornsby Shire Council v Winsloe (1998) 101 LGERA 117. That case concerned an offence alleging a breach of a tree preservation order created pursuant to clause 8 of Hornsby Local Environment Plan 1994 (the Hornsby LEP). However, in that case the charge did not allege that the offending conduct (the lopping of trees prohibited by the tree preservation order without consent) was prohibited or forbidden by the Hornsby LEP. This was so notwithstanding that clause 8(2) of that LEP provided as follows: "A person shall not carry out or permit or direct to cause any ringbarking, cutting down, topping, lopping, removing or wilful destruction of any tree or trees to which a tree preservation order applies without the consent of the Council." 68 Understandably, Bignold J considered (at 132) that, read together, clause 8(2) and the relevant tree preservation order operated to prohibit the proscribed conduct without the consent of the council. As that conduct was "development" as defined in s4(1) of the EPA Act, the question was whether in those circumstances the Hornsby LEP was one which "provides that development specified therein may not be carried out except with consent under the act being obtained therefore"

within the meaning of s76(2) of the Act as it then was (now s76A(1)) so as to enliven the prohibition created by that provision. 69 Noting that the prohibition created by s76(2) was "entirely predicated and dependent upon the existence of relevant provisions of an environmental planning instrument", Bignold J considered (at 133) his preferred view to be that "an interpretation of [the first limb] of s125(1) which recognises the indispensability of an environmental planning instrument to the creation and operation of the relevant prohibitions contained in s76 would suggest that the expression ' by or under this Act ' in s125(1) is not intended to give effect to a dual system of prohibitions based upon the provisions of an environmental planning instrument … Accordingly, an interpretation of s125(1) which is more harmonious with the scheme of Part 4 of the EPA Act … is one which would exclude from the ambit of the expression 'prohibition under this Act', a prohibition otherwise created by s76 of the EPA Act which prohibition is entirely founded upon the provisions of an environmental planning instrument ." (Emphasis added.) 70 However, his Honour did not find it necessary to express a concluded view on the meaning of the expression "by or under this Act" in s125(1) and, in particular, as to whether a prohibition contained in a provision such as clause 8(2) of the Hornsby LEP was relevantly a prohibition "under this Act' within the meaning of s125(1). This was because the charge in that case (unlike that in the present case) did not aver the provisions of clause 8(2) as the relevant prohibition. Rather, the only relevant prohibition (if any) averred was that contained in the tree preservation order. 71 It is clear from the foregoing that Bignold J, while finding it unnecessary to express a concluded view on the issue, made four key observations. First, his Honour found that the first limb of s125(1), insofar as what was alleged to be forbidden or prohibited was "development" as defined, required that that prohibition be created by s76(2) (now s76A(1)) of the EPA Act. Second, Bignold J noted that that prohibition must be "entirely founded" upon the provisions of an environmental planning instrument such as clause 8(2) of the Hornsby LEP. Thirdly, he considered that a prohibition contained only in a tree preservation order, albeit made under a provision such as clause 8 of the Hornsby LEP, would not constitute one "by or under this Act" within the meaning of the first limb of s125(1). Finally, his Honour held that a charge that only avers the relevant prohibition as being contained in a tree preservation order as distinct from a provision such as clause 8(2) of the Hornsby LEP, is insufficient to enliven the prohibition created by the then s76(2) of the EPA Act. 72 In Hornsby Shire Council v Clyne (unreported, 29 October 1998), the relevant environmental planning instrument was also the Hornsby LEP. Further, as in Winsloe, the offence with which Ms Clyne was charged was that she caused to be cut down trees "contrary to the provision of a tree preservation order made pursuant to clause 8 of the [Hornsby LEP.]"

This charge was framed, as Talbot J observed in [12], in relevantly similar terms to that considered by Bignold J in Winsloe . 73 Talbot J (at [13]) agreed with Bignold J that a breach of a tree preservation order could not be a breach of s76 (now s76A) of the EPA Act as a tree preservation order is not an environmental planning instrument. Accordingly, because of the manner in which the charge was framed, the offence alleged could only fall within the second limb of s125(1). By way of contrast, and as Bignold J held in Winsloe, Talbot J had observed at [15] that where the offence is framed, as it is in the present case, in terms of a prohibition "founded directly and solely upon the provisions of a LEP, the prospect of an offence under s125 may only arise out of a contravention of s76". In such as case, the offence would be one which fell within the first limb of s125(1). 74 However, as I have noted, in both Winsloe and Clyne the relevant prohibition the subject of the offence charged was not alleged to be that contained in clause 8(2) of the Hornsby LEP. Rather it was alleged to be that contained in the tree preservation order itself. Although Talbot J (at [18]) considered that clause 8(2) merely declared the limits of any tree preservation order made under clause 8(1), in my respectful view it contained an actual prohibition which, if it had been the prohibition alleged in the charge, would have constituted an offence under the first limb of s125(1). 75 In the context of this last comment, the following observations of Bignold J in Winsloe (at 134) are apposite: "For my part, and assuming against my preferred construction of s125(1) that a prohibition contained in an environmental planning instrument may constitute 'a prohibition under this Act', I would hold that the relevant 'prohibition' is sourced in clause 8 of the LEP rather than in the terms of the TPO for the reason that the prohibition created by the LEP is more obviously a prohibition 'under the Act' because the LEP is made, and is in force 'under the Act' whereas the prohibition created by the TPO is not directly so, being a prohibition contained in a TPO made under the LEP, and to that extent is one step removed from being a prohibition 'under this Act'." 76 I generally agree with the above analyses of Bignold J and Talbot J. However, they are contrary to the earlier decision of Lloyd J in Meriton Apartments Pty Ltd v Ryde City Council (unreported 30 April 1998). In Cameron, his Honour referred (at 313 [14]) to his own judgment in Meriton, and stated that he had there held "that clause 41 of the Ryde Planning Scheme Ordinance was part of the relevant environmental planning instrument and that the prohibition against destroying or harming trees is not contained in the executive order made by the council but is contained in the instrument, namely, in subcl (5) of cl 41"

which was in the same terms as clause 44(5) of the Ordinance. Thus in Cameron (at 313 [18]) his Honour concluded that "Since the tree preservation order in this case is made pursuant to cl 8 of the Model Provisions, and since cl 8(5) [of the relevant LEP] is relevantly a restriction or prohibition which is contained in the local environmental plan, it follows that the cutting down of trees is an act, matter or thing referred to in s 26 that is controlled by the environmental planning instrument and is thus within the definition of 'development'." 77 Lloyd J (at 312-313 [13]) then distinguished Winsloe and Clyne upon the basis that clause 8 of the Hornsby LEP had no equivalent to clause 8(5) of the Model Provisions (clause 44(5) of the Ordinance). His Honour seems to have been suggesting that a provision such as clause 44(5) of the Ordinance has more force as a prohibition than clause 8(2) of the Hornsby LEP, a provision which finds no equivalent in clause 44 of the Ordinance. If this was indeed his Honour's conclusion, and it seems as though it was, it was also the view adopted in this matter by Pain J and confirmed as correct by the Chief Judge (at [28]). However, it is not a view which I share. 78 Of course, Lloyd J was not dealing with s125(1) of the EPA Act in either Meriton or Cameron. Nevertheless, both Pain J and the Chief Judge relied upon [18] of his Honour's judgment as authority for the proposition that once a tree preservation order had been made by a council, a provision such as clause 44(5) of the Ordinance, which created an offence where there was a contravention of such an order, was also a restriction or prohibition contained in an environmental planning instrument for the purpose of s76A(1) of the EPA Act. For the reasons I have set out above, their Honours erred in so holding. 79 As I have noted in [19] above, the appellant accepted for the purposes of his argument that his act of permitting the subject trees to be cut down constituted "development" as defined in s4(1) of the EPA Act and "specified development" within the meaning of s76A(1). However, he submitted that s76A(1) only applied "if" an environmental planning instrument "provides" that that development may not be carried out except with development consent. Again, the point made by the appellant is that the relevant planning instrument must itself provide that the specified development may not be carried out except with consent. Clause 8(2) of the Hornsby LEP in Winsloe and Clyne so provided, although the offences in those cases were not framed in terms of a contravention of that provision. 80 However, no provision equivalent to clause 8(2) of the Hornsby LEP is to be found in clause 44 of the Ordinance in general, or in clause 44(5) in particular. So much is clear from clause 44(2), which empowers the Council to include such a provision in a tree preservation order made by it. Of course, whether any particular tree preservation order contains a prohibition in terms of clause 44(2) is a matter for the Council to determine if and when it makes such an order pursuant to clause 44(1). But what clause 44(2) emphasises is that it is the tree preservation order that "provides" that specified development may not be carried out except with consent. This is not the function of clause 44, let alone clause 44(5). The latter neither expressly nor impliedly contains a prohibition that specified development may not be carried out except with development consent. Accordingly, s76A(1) of the EPA Act was never enlivened in this case. 81 The Council nevertheless submitted that clause 44(5) not only authorised the creation in a tree preservation order of a prohibition in terms of clause 44(2) but that it also contained the necessary prohibition. At the very least, clause 44(5) was said to have created a conditional prohibition; that is, one conditional upon a tree preservation order being made pursuant to clause 44(1) containing a prohibition in terms of clause 44(2). 82 Even if a tree preservation order is made pursuant to clause 44(1) containing a prohibition in terms of clause 44(2), I am not prepared to accept that clause 44(5) itself "provides", for the purpose of s76A(1), that the development specified in the tree preservation order may not be carried out except with development consent. In particular, I do not accede to the submission that it is sufficient compliance with the clear words of s76A(1) that the relevant environmental planning instrument be the source of the prohibition insofar as it only authorises a council to make a tree preservation order, which then provides that specified development may not be carried except with consent. As both Bignold J and Talbot J correctly held in Winsloe and Clyne respectively, a tree preservation order is not an environmental planning instrument. 83 Furthermore, I would reject the Council's submission that one can construe the word "provides" in s76A(1) as meaning "make provision for". Rather, in my view, the chapeau of s76A(1) requires that a provision that specified development may not be carried out except with development consent is to be provided or contained in the environmental planning instrument itself. It was so provided in clause 8(2) of the Hornsby LEP, which was considered by Bignold J in Winslow and Talbot J in Clyne, but it is not provided by clause 44(5) of the Ordinance. 84 In my opinion, it follows that the charge against the appellant has not been proven insofar as it alleged that he had carried out development without the Council's consent, which "was forbidden to be done by clause 44" of the Ordinance. This is because clause 44 and, in particular, clause 44(5) did not, within the meaning of s76A(1), provide that specified development may not be carried out except with development consent. Such a provision was made in the 1985 order but unlike the offences charged in Winsloe and Clyne, the development the subject of the offence charged in the present case, was alleged to have been prohibited or forbidden by clause 44 of the Ordinance and not by the 1985 order. 85 It therefore follows that the offence charged in the summons did not fall within the first limb of s125(1) in that the relevant development was not forbidden to be done under the EPA Act, that is, by clause 44 of the Ordinance. Accordingly, as the commencement of the proceedings in respect of the offence was more than six months after the offence was alleged to have been committed, it was statute barred. In these circumstances, the appellant's conviction must be quashed.

(b) After accepting that his evidence involved approximations and that there was a margin for error in all measurements, that being the nature of trees, and further accepting that there were many variables as to whether the branches of Tree D were longer than those of Trees B and C, the following exchange took place (at T194-195): "Q. You're not saying to the court that branches of that southernmost tree that was cut down could not have extended to between seven and eight metres? A. I don't believe it did because it would have to go through another three trees. Q. But you're not saying it's impossible are you? A. Well it's probably 97% impossible. Q. You're not saying it's impossible? A. It's 98% impossible to reach - to reach that building, yes. … Q. And you say in relation to that it seems unlikely that it would have encroached upon the three metres of the dwelling located to the northwest? A. Yes. Q. You're not saying it's impossible are you? A. Well generally I'm saying that to encroach on that three - supposedly imaginary three metre line would be improbable because it's got to go through the trees virtually from the radius out from the trunk which normally they radiate out, which is not like gums which can go in all directions. It would normally, it would have to cross through the branches of tree No 3 and therefore it's - and that's also tree No 4 to get to that stage, because the radiating out branches of tree No 4 and tree No 3 would prevent enough light to create the photosynthesis to provide the nutrients to grow the tree. Now I believe that taking into consideration the branches next to the trunk would have died off in the process. There wouldn't be that many actual branches going in that direct…. Q. You're not saying it was impossible for that branch to have encroached within three metres of the house? A. I'm saying within 90-98%. Q. Please answer my question. You're not saying it's impossible? A. Not totally impossible. Q. I think the word you've used, you've moved from "unlikely" to "improbable"? A. No, I'm still "unlikely". '

(c) In re-examination at T197 the following exchange occurred: "Q. You were asked, having regard to your acceptance of Mr Ford's measurement or estimate of branches emanating to the east and to the north-west of his tree A, that is to say the north remaining tree, of 7.9 and 7.4 metres, you were asked in relation to tree 1, that's to say the southernmost of the trees removed, and having regard to it's 700 millimetre diameter, whether branches looking for light may have gone further than 7.9 metres. And you disagreed? A. Yes. Q. What's the reason for your disagreement? A. My disagreement is that it would have to go through a number of canopies to reach that. That's the main difference. And where you've got radiating branches coming out from each tree it's got to pass through each canopy of that, fairly close to the trunk to get close to the building, of tree No 2 for instance, and then tree No 3 and tree No 4. The chances of that happening, say even just the tree 1, 2 and 3, would be fairly difficult to happen. And I'd say nearly impossible." 90 Upon the basis of the foregoing exchanges, the appellant submitted that his Honour could not have been satisfied beyond reasonable doubt based on Mr Machin's evidence, which he had accepted, that there were no branches of Trees C and D and, in particular, Tree C, that did not intrude into the three metre concessional distance from the adjoining dwelling house. 91 However the appellant did not contest that for a tribunal of fact to be satisfied beyond reasonable doubt, it was not necessary that the evidence in question be expressed as a matter of certainty. It was also accepted that that a fact could be proven beyond reasonable doubt even though the evidence with respect to it was expressed in terms of less than a certainty. 92 In the present case the Chief Judge relied not only upon the evidence of Mr Dawkins and Mr Machin but also upon photographic evidence and evidence from the appellant constituted by his letter to the Council of 26 July 2002. That letter stated that the reason he had removed the trees was because they were becoming poor and unhealthy due to the fact that they were planted close together and their natural sunlight and access to soil and nutrients was impeded. These factors were clearly accepted by his Honour as impacting upon the ability of the branches of Trees C and D to extend to any degree in a north or northwest direction through the branches of the trees to their north to a point within three metres of the adjoining dwelling house. 93 Further, his Honour acknowledged the areas of Mr Dawkins' cross-examination that were unreliable, but nevertheless accepted his evidence in relation to his observation of the distance of the branches of the three trees from the adjoining dwelling house. As the Council contended in its written submissions, Mr Dawkins' evidence as to the distance between the relevant trees and the adjoining dwelling and, in particular, Trees C and D, was not directly challenged. 94 In my opinion it was clearly open to the Chief Judge to find beyond reasonable doubt that Trees C and D did not extend their limbs to the north and northwest to within three metres of the adjoining dwelling house. Accordingly, I would reject the appellant's challenge to that finding.

Did the making of the 1987 order rescind the 1985 order? : Grounds of Appeal 7-9 95 It was submitted to the Chief Judge that the Council's resolution of 16 June 1987 adopting the 1987 order impliedly rescinded the 1985 order within the meaning of clause 44(1) of the Ordinance. His Honour rejected this submission (at [14]) in these terms: "To my mind, although the Council resolved to make a tree preservation order in 1987, the failure to notify as required by the provision in clause 44(4) of the Planning Scheme Ordinance had the consequence that, although made, the tree preservation order is not operative and in force. In my opinion, the consequence must be that the 1985 tree preservation order remains in force. It could hardly be otherwise. When the Council resolved to adopt the 1987 form of the tree preservation order it could not have intended that by the mere adoption of the resolution the 1985 order would cease to exist. If that was the case there would have inevitably have been a period between the date of the resolution and the time at which arrangements could have been made to publish the tree preservation order in the Gazette. The consequence would be that for that period of time there would have been no restriction on the capacity to remove trees within the Gosford City. The Council could never have intended this to be the case. Accordingly, if it be the case that the 1987 resolution has not been carried into force, then it must follow that the 1985 tree preservation order continues to operate." 96 The appellant submitted that by making the 1987 order it must have been the intention of the Council to rescind the 1985 order. No purpose would be served in having two orders operating at the same time. The fact that there may be a short period between the making of the order and its publication pursuant to clause 44(4) was of no moment given that that provision required the relevant publication to be carried out "forthwith". 97 The appellant sought to resort to the law concerning the implied repeal of an earlier statute by a later statute. However, in my opinion there are significant differences between a legislature enacting a statute which impliedly repeals an earlier statute in accordance with the relevant principles of the general law, such as where the earlier statute cannot stand consistently with the later statute, and an implied rescission of a tree preservation order by the making of a new order by resolution of a council. 98 In my opinion, therefore, there are a number of grounds upon which the appellant's submission should fail. First, clause 44(1) of the Ordinance expressly provides that the exercise by the Council of its power to rescind a tree preservation order is "by like resolution". A council can only make a decision by resolution. In my view there is much to be said for the proposition that there is no room for an implied rescission of a tree preservation order and that, as clause 44(1) clearly contemplates, any such rescission must be the subject of an express resolution. 99 Second, even if there is room for an implied rescission as the appellant contends, such a rescission could only be implied into the resolution adopting the 1987 order if it were tolerably clear that the Council intended that the latter order should in fact replace the 1985 order. If there is to be an implied rescission there must, in my view, also be implied into the resolution making the new tree preservation order a condition that the rescission of the old order is only to occur when the new order becomes legally operative. Accordingly, as the 1987 order did not become legally operative, the implied condition for any implied rescission of the 1985 order was never fulfilled. As a consequence, the 1985 order remained in force. 100 Third, there was no relevant difference between the terms of the 1985 order and those of the 1987 order, which is apparent from a comparison of the two orders which I have noted in [25] above. Relevantly for present purposes, both can stand together. The general law relating to the implied repeal of an earlier statue by a later statute requires a finding that the later statute cannot stand together with the earlier; in other words, that there is a clear intent that the two cannot stand together: Butler v Attorney-General for Victoria (1961) 106 CLR 268 at 275-276, 290-291; Saraswati v The Queen (1991) 172 CLR 1 at 17. In my opinion, there is nothing in the 1987 order that would prevent it from being read consistently with the 1985 order; that is, to the extent to which they overlap, each should be read as subject to the other. So far as the present case is concerned there is no relevant overlap: the provisions are identical. 101 In these circumstances, there is no room in my opinion for any implied rescission of the 1985 order by the making of the 1987 order. I would therefore reject this challenge to the Chief Judge's decision.

Anthony Tauszik v Gosford City Council

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Judgment (56 paragraphs)

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Cases Cited (10)

Cited By (7)