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.