City of Canada Bay Council v Frank Edward Bird; City of Canada Bay Council v Michael John Christopher - [2003] NSWLEC 9 - NSWLEC 2003 case summary — Zoe

NSWNSWLEC

City of Canada Bay Council v Frank Edward Bird; City of Canada Bay Council v Michael John Christopher

[2003] NSWLEC 9

Land and Environment Court (NSW)|2003-06-24|Before: Cowdroy J, Mr J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2003-06-24

Before

Cowdroy J, Mr J

Source

Original judgment source is linked above.

Judgment (57 paragraphs)

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CITATION : City of Canada Bay Council v Frank Edward Bird; City of Canada Bay Council v Michael John Christopher [2003] NSWLEC 9 revised - 24/06/2003 PROSECUTOR City of Canada Bay Council

[2]

DEFENDANT Frank Edward Bird PARTIES : PROSECUTOR City of Canada Bay Council

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DEFENDANT Michael John Christopher FILE NUMBER(S) : 50136 of 2001; 50137 of 2001 CORAM: Cowdroy J KEY ISSUES: Environmental Offences :- honest and reasonable mistake of fact- trees lopped without consent - tree preservation order Environmental Planning and Assessment Act 1979, s 125, s 26, s 33(1) Environmental Planning and Assessment Model Provisions 1980 LEGISLATION CITED: Evidence Act 1995, s 141 Drummoyne Local Environment Plan 1986 Drummoyne Council Tree Preservation Order 1986 ADI Ltd v Environment Protection Authority (2001) 118 A Crim R 335; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Director of Public Prosecutions v United Telecasters Sydney Ltd (1989 - 1990) 168 CLR 594 ; Dragan Radic (2001) 122 A Crim R 70 (CCA) ; Environmental Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1; CASES CITED: Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361 ; He Kaw Teh v The Queen (1985) 157 CLR 523; Hunter Water Board v State Rail Authority of NSW [No 1] (1992) 75 LGRA 15 ; Power v Penthill House Pty Ltd and Ors (1993) 80 LGERA 247 ; Proudman v Dayman (1941) 67 CLR 536; State Rail Authority of NSW v Hunter Water Board (1992) 8 NSWLR 721 (CCA) 22/7/2002 DATES OF HEARING: 23/7/2002 24/7/2002 6/12/2002 DATE OF JUDGMENT: 02/07/2003

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The Prosecutor's Evidence 13 The prosecutor relied upon both lay and expert evidence which is summarised as follows. Heather Barnes 14 Ms Heather Barnes an Environmental Manager for the New South Wales Fire Brigade is a resident in the building at No. 26 ("the building"). Ms Barnes holds the qualifications of Bachelor of Science (Geology/Biology) and the degree of Master of Environmental Studies. 15 From January 2001 Ms Barnes noticed that foliage on the tree closest to the building (hereafter referred to as "T2") had commenced to turn from green to brown. Ms Barnes had closely inspected T2 and the tree closer to the waterfront ("T1") and noticed that a hole had been placed in the trunk of each the trees. Ms Barnes testified that T1 had one brown branch which constituted about 10 per cent and that "the whole of the rest of the tree was green". In a letter to the General Manager of the City of Canada Bay Council dated 28 June 2001, Ms Barnes recorded the condition of the trees as follows: It appears an unsuccessful attempt had been made to poison these trees some few months previously; drill holes and plugs were discovered when trying to determine the reason for browning on some branches. As at the 26th June, one was displaying substantially browned leaves, but green regrowth was occurring at the crown, the other tree had one browned branch only but was otherwise healthy. 16 From April 2001 she noticed that new green growth was starting to sprout from T2 above that portion of brown and the green portion seemed to be increasing towards the crown. She testified: The tree number two still had green sections to it, not a great amount, I would suggest 5 to 10 per cent of the tree was still green, and that was as about February. I noticed during the year that that green seemed to increase slightly. Now I couldn't see where it was coming from particularly because the trees were so high, they were about 35 foot high, and that was up quite high in the tree, and I didn't have access to it, but it seemed to me that the tree was recovering. 17 On the morning of 26 June 2001 at approximately 7.30 am she heard the noise of chain saws. She observed the trees in the grounds of No. 26 were being cut down and had a conversation with a man who was carrying branches. She asked him whether he had a permit. In response she was referred to a man who was holding a chainsaw and was standing in No. 26 who was the defendant, Mr Michael Christopher. Another man namely the defendant, Mr Frank Edward Bird, was standing in the garden of No. 28. 18 Ms Barnes inquired of Mr Bird whether he had permission to cut down the trees. He replied "It's okay I have permission from Ian. He is on the body corporate of No. 26." Mr Ian Richardson is chairman of the Body Corporate of No. 26. When she asked whether he had a permit from the council he responded on two occasions: "Don't worry about it. I know someone on the Council". Ms Barnes requested the defendants to desist. Ms Barnes said: "I have spoken to the ranger. He said you have to stop, you have no permit. There is a large fine for removing trees illegally". In response Mr Bird demanded to know whether she was an owner. When informed that she was an occupant, but not an owner, Mr Bird said that work would stop only if she was prepared to pay for the work. Ms Barnes immediately contacted the prosecutor and arranged for an officer to attend on site.

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... however the presence epicormic shoots suggests the tree was recovering and remedial pruning and improvement of the trees condition was the most appropriate course of action, as opposed to total removal of the tree. 37 In his oral evidence, Mr Martin explained that "partial sections of the tree may have exhibited permanent wilting, or loss of turgidity, however the presence of epicormic shoots indicates the trees had not permanently wilted". 38 As to T1, Mr Martin expressed his opinion concerning the state of the trees as follows: … if I make the assumption that that tree had green foliage then in processes the tree was capable of performing photosynthesis, and also it would have been capable of performing osmosis. If the tree had green foliage on it it [sic] would have been capable of producing epicormic shoots. So, in my opinion, it was capable of all those three processes. 39 Mr Martin explained that "epicormic shoots" are those "that arrive in response to stress …". When asked whether T1 was dying, he replied: I don't think that there'd be any reason to believe that that tree was dying based on the assumption that the tree had green foliage. 40 Mr Martin also said: The crown that's evidence on the ground, if we assume that that comes from tree 1, looks to me to be characteristic of a crown on a tree that's in fair health. 41 He said in relation to T2: In general, there would be either further testing done or a period of time elapse to determine whether or not that tree was dying. It's a possibility that that tree was dying because of the remaining one-third of the crown, the green foliage, there's also a possibility that the tree would recover. 42 Mr Martin viewed the photographs of the stumps of the trees and testified:- It's showing what appears to be a moist surface. The front cut is quite steep, and the sawdust is still attached to that surface, and that's what I base my assumption on, the fact that that's a moist live surface, so that doesn't contain any evidence, in my opinion, that shows the trees are dying

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Mr Martin was cross examined upon the issue of green leaves, it being suggested that the green leaves were no more than the residue of old growth. However he maintained that the green shoots observed in T2 was not old growth but epicormic shoots indicative of new growth as a result of stress to the tree. Defence of Frank Bird 46 Mr Bird testified that he purchased his home unit at No. 28 in March 2001. Extensive landscaping was undertaken before he began occupying the unit on 18 May 2001. Shortly thereafter he became a member of the Body Corporate of No. 28 and became aware of complaints concerning dead leaves and twigs falling on the lawn and into the pool of No. 28. Mr Bird deposed that he spoke to Mr Ian Richardson who was a member of the Body Corporate of No. 26 and offered to remove the trees at his own expense. Mr Bird testified that Mr Richardson agreed. As a consequence he arranged for Mr Christopher to remove the trees. 47 On the morning of 26 June 2001 Mr Bird met Mr Christopher and the cutting down of the trees commenced by Mr Christopher and continued although interrupted initially by Ms Barnes, and Mr Johnson and thereafter by the council officer, Mr Gregory Martin. Mr Bird acknowledged that he was requested to stop these operations, but declined to do so as he considered the trees to be dead. Mr Bird repeatedly stated in his evidence that "both trees as far as I can [sic] [am] concerned were completely dead". 48 Mr Bird said that there had been a meeting of the Body Corporate (of No. 26) at which it was agreed to remove the trees. He denied that he had said that the trees were obstructing his view. He said he considered the trees were dangerous. 49 During his cross-examination Mr Bird conceded T1 was not completely dead. The following question and answer is recorded: Q. Are you suggesting Mr Bird that the tree which had that branch attached to it prior to Mr Christopher lopping it was dead? A. Not completely. 50 As to Ms Barnes' request that he cease cutting the trees he said that he asked her whether she was an owner. When he learnt that she was not an owner he acknowledged that he would stop provided that she would pay for the work. Since Ms Barnes declined any such offer, the work continued. He denied saying "I know someone on the council". By the time the council officer Mr Gregory Martin attended on site the trees had already been cut down and Mr Christopher was engaged in cutting up the branches. 51 Mr Bird referred to the meeting that was subsequently arranged at his request with the local mayor at which Mr Peter Richards (the prosecutor's landscape officer) was present. Mr Bird said in oral evidence:-

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However, without correcting such statement, he later testified that there was one green branch on T1. He described it as follows:- That was on the left of the tree and it was the lowest limb on that tree. 61 Evidence was called by the defendants concerning the branches which constituted "the crown" of a tree. Mr Christopher understood that the crown of a tree included all limbs above the lower limbs. In respect of T1 the lowest limb was green. He defined the lowest limb as the limb which joined the trunk at the lowest level. Such branch was not, in his opinion, included in the definition of "crown" of a tree. Accordingly, even though such branch had green foliage, he did not consider it to be relevant for the purpose of determining whether the tree was dead. 62 Mr Christopher described T2 as woody with no brown foliage. He said there was no wilting of the leaves at all as they had all fallen off. When shown photograph No. 5 and photograph No. 11 (annexed to the affidavit of Gregory Shane Martin sworn 28 November 2001) which showed a large branch with green foliage. Mr Christopher acknowledged that there could have been moisture in the co-dominant stem and said that a tree holds moisture "all the time". He said that the conclusion could not however be drawn that the tree was necessarily alive. 63 Mr Christopher was shown photographs No. 9 and No. 10 which depicted green growth which the prosecutor's expert Mr Martin had identified as new growth. In Mr Christopher's opinion such growth was original and did not comprise new growth or new shoots. He denied the presence of any epicormic growth. 64 Mr Christopher acknowledged that the browning of the trees was consistent with "a number of factors". He did not see any poisoning holes, and formed the view that the live green foliage was insufficient to provide growth for the tree. By reference to photographs 5 and 7 Mr Christopher opined that there was not enough green foliage for osmosis. 65 Mr Christopher acknowledged that a tree having green leaves is capable of photosynthesis and that photograph No. 11 showed that the crown of the tree was not totally dead. 66 Mr Christopher testified that Mr Bird had informed him that the strata management had agreed upon the removal of the trees but he did not see, nor ask to see, the consent.

[43]

Classification of Offence 70 The offence is stated in the summonses to be a breach of the TPO being an order made pursuant to the LEP. By s 26 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") a local environment plan may make provision for protection of trees. The particulars contained in the summons identify the TPO by the date of its adoption by resolution of the Drummoyne Council and the date of the gazettal. The Model Provisions may be adopted by a local authority wholly or partially by an environmental planning instrument as provided by s 33(1) of the EP&A Act. 71 It is apparent from the text of s 33(1) of the EP&A Act that the provisions of an environmental planning instrument may make provisions other than those contained in the Model Provisions, and may revoke or vary any such provisions. It is not a requirement of the Model Provisions that the whole of cl 8 thereof be implemented. Further, clause 8 of the Model Provisions does not purport to be a comprehensive regulation relating to tree preservation. The sub-clauses refer to matters which may, or may not, be adopted by a local authority. No penalties are provided for any breach, indicating that the ultimate regulation for any tree preservation order resides in the discretion of the individual local authority. 72 In this instance, Drummoyne Council, while using the facultative provisions contained in cl 8 of the Model Provisions to make the TPO, has provided for a complete code for its TPO, including penalties and has provided for a defence which is more restricted than that which might have been available under the Model Provisions. The Model Provisions, if adopted, would have enabled the defendants to establish that defence if they proved that the trees were dying or dead. The TPO requires a defendant to prove that the trees were dead, as defined, not merely that the trees were dying, to establish a defence. 73 It is also apparent that the Model Provisions have no application to these proceedings for another reason. The defence provided by cl 8(6) of the Model Provisions is expressly limited to "proceedings under this clause". The summons filed in each of the proceedings against the defendants have not been instituted pursuant to cl 8 of the Model Provisions. Rather they have been instituted pursuant to the TPO. The charges are specific, and are limited to a breach of the TPO which creates an offence under s 125(1) of EP&A Act. The Model Provisions are only relevant historically to show that the Drummoyne Council adopted cl 8 of the Model Provisions, thereby enabling it to prohibit the removal of trees or land affected by the provisions of its LEP. 74 For these reasons the Court concludes that the Model Provisions and the defence provided by cl 8(6) thereof has no application to the charges now before the Court.

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78 The Court has had the benefit of assessing the witnesses and finds the evidence of Ms Barnes to credible. Ms Barnes had been monitoring the condition of the trees constantly following their deterioration in January 2001. She paid meticulous attention to the trees because of her concern that they had been poisoned. The Court finds the testimony of Ms Barnes to be accurate, despite the attacks made upon her by the defendants, and to be the most reliable of all witnesses with regard to the condition of the trees at the date of their removal. Accordingly the Court accepts her recollections of conversations, and of her visual observations. 79 Ms Barnes was adamant that the green portion in the crown of T2 was increasing. She rejected the suggestion as "totally incorrect" that T1 had "an amount of green leaves in that tree but the rest of it was brown". Ms Barnes had a vivid recollection of the events concerning removal of the trees, and of her conversations with Mr Bird. The Court accepts her evidence of such matters. 80 Certain discrepancies exist in the testimonies of the witnesses of the prosecution concerning the extent of the green foliage of each of the trees. The Court is satisfied that such differences are not sufficient to detract from the accuracy of Ms Barnes' evidence. Ms Barnes made detailed visual observations and, her testimony, concerning the condition of the trees, is considered more reliable than that of the experts whose evidence was based essentially on photographs and statements. 81 Mr Langley did not have a clear view of the trees and his recollection concerning the state of the trees was inconsistent, not only with the evidence of the prosecutor, but also with the defendants' evidence. Accordingly his evidence is of little weight. 82 The evidence of Mr McQuillan is also of little weight. He did not have the same degree of special interest in the trees as that of Ms Barnes and Mr Johnson, and his evidence of his visual observations was inconsistent with all of the other witnesses. 83 The observations of the trees by Mr Carmody was fleeting. The Court accepts that he noticed brown foliage on the tops of the trees during his drive past No. 26. His evidence however does not suggest that he studied the condition of the trees, nor made a close observation. Mr Carmody did not stop to inspect the trees and only went to the site after this hearing commenced being eighteen months following his observation. In so far as his evidence conflicts with the evidence of Ms Barnes and Mr Johnson, the Court considers the observations of the latter witnesses to be more reliable because of their detailed observations.

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The Court of Criminal Appeal in State Rail Authority of NSW v Hunter Water Board (1992) 8 NSWLR 721 (CCA) at p. 726 referred to the observations of Stein J and did not disagree. Honest and reasonable mistake relating to written consent 88 Mr Bird testified that the Body Corporate of No. 26 had agreed at a meeting to authorise the removal of the trees. By letter dated 13th August 2001, Mr Bird wrote to the prosecutor, stating inter alia:- Both Body Corporates agreed in March that they had died and were a danger to residents of both buildings also our strata title manager also wrote to Council on my behalf. The fact is that no resolution approving removal of the trees was issued and no authorisation either oral or in writing was given by the Body Corporate as alleged. Additionally Mr Bird was informed at the meeting with the Mayor that the letter received from the strata manager was not satisfactory. The meeting of the Body Corporate discussed the removal of a Banksia tree, not the trees in question. Further, Mr Ian Richardson, the Chairman of the Body Corporate, who allegedly gave oral permission, was not called as a witness. The Body Corporate of No. 26 wrote to the council after the cutting down of the trees, stating its objection to the removal of the trees. 89 The inference can be drawn from Mr Bird's application for consent of the Body Corporate that Mr Bird was well aware that consent in writing was required for the removal of the trees. Mr Bird did not suggest that he read the TPO and formed any opinion that the trees did not require permission for their removal because they were dead. In these circumstances the Court is unable to conclude that Mr Bird held an honest and reasonable belief that he had written consent of the Body Corporate of No. 26 for removal of the trees. 90 With respect to Mr Christopher, there is no evidence that he sought or requested production of any written consent of the Body Corporate of No. 26. Mr Christopher had operated as tree lopper in the Drummoyne area for 12 years and knew that Mr Bird lived at No. 28. From his twelve years experience as a tree lopper operating in the locality it can be inferred that Mr Christopher was aware that the written consent of the owner of the property was required. Further, even if such belief was held when he attended the site it must have been dispelled within minutes of commencement of tree cutting operations. He refused to stop using the chainsaw at an early stage when the need for permission was raised and objection was vehemently made by Ms Barnes. Accordingly, he was placed directly on notice of this need for permission but elected to disregard such requirement. There is no basis for the defence that Mr Christopher believed that written permission existed.

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Honest and reasonable mistake that the trees were dead 91 The evidence establishes that Mr Bird was determined to remove the trees. The trees had allegedly caused nuisance to the owners of No. 28 because of debris falling into their swimming pool. Whether there was another motive of Mr Bird in having the trees cut down as submitted by the prosecution, namely interference with views, is a matter in respect of which the Court is unable to make any finding. 92 Mr Bird's repeated assertions that as far as he is concerned the trees were dead does not assist his defence. His testimony was inconsistent and therefore unreliable as evidenced by his claim that he had permission of the Body Corporate (of No. 26) when in fact none existed. He also claimed that it was agreed at the meeting with the Mayor that the trees were dead, when in fact the minute records no such conclusion. Mr Bird deposed that:- "…as far as I was concerned the trees were dead or dying. There could have been a few little green leaves but not - wouldn't be lucky to be 5 per cent in my opinion." 93 The Court must consider the claim that an honest and reasonable belief was held by Mr Bird and by Mr Christopher that the trees were dead based upon their visual observations. Mr Bird acknowledged that T1 was "not completely" dead. Mr Christopher admitted that photograph No. 11 showed that the crown of T1 was not totally dead. In view of these admissions neither defendant could of held a belief that T1 was dead. 94 As to T2 there is a conflict of evidence concerning the appearance of such tree. Against the evidence of the defendants that T2 had no green foliage is the evidence of several witnesses of the prosecution to the contrary. In these circumstances the Court considers the defendants have not discharged the burden of proof that they held an honest and reasonable belief that T2 was dead as defined in the TPO. 95 In view of this finding it becomes unnecessary to deal with the prosecutor's submissions that the offence is established by proof of the destruction of only one tree: see Sydney Water at 365; Dragan Radic (2001) 122 A Crim R 70 (CCA) per Carruthers AJA at p. 79. Environmental Damage 96 It is relevant for the Court to consider the extent of environmental damage caused by the removal of the trees for the purpose of assessment of penalty. The environmental damage resulting from the removal of the trees is succinctly summarised in the letter written by Ms Barnes to the prosecutor dated 28 June 2001 as follows:- The trees were the only substantial sized native trees on the property at 26 Walton Crescent. They provided much needed shade for the BBQ area and acted as wind breaks. They provided shelter and food for a number of native fauna species including silvereyes, rosellas, rainbow lorikeets, honeyeaters, and native noisy miners. They also acted as a privacy screen from adjoining properties. The loss of these trees is a great blow to residents and diminishes the amenity of the property. 97 Mr Langley wrote to the prosecutor by letter dated 28 July 2001 in which he stated, inter alia:- These trees were very important as shade trees in 26 Walton Crescent. In fact, they were the only 2 trees which provided much shade in the front garden in the heat of summer. 98 The Court accepts the above statement as being an accurate summary of the environmental damage which has resulted from the conduct of each defendant.