City of Sydney Council v Royal Botanic Gardens and Domain Trust [2004] NSWLEC 285 | Case summary

28 May 2004 CITY OF SYDNEY COUNCIL Applicant v ROYAL BOTANIC GARDENS AND DOMAIN TRUST Respondent EX TEMPORE JUDGMENT HIS HONOUR: 1 On 14 April 2004 the Minister for the Environment issued a press release in which he said that he accepts the advice of the Royal Botanic Gardens and Domain Trust and supports the removal of eleven trees suffering from poor health in the Domain. The applicant, City of Sydney Council ("the council"), claims in these proceedings that the decision of the respondent, the Royal Botanic Gardens and Domain Trust ("the Trust"), to remove and any attempt to remove the trees is unlawful. 2 The council has raised a number of grounds in support of its claim. (1) By a resolution of the council passed on 19 April 2004, the Tree Preservation Order of the City of Sydney dated 25 March 1974 ("the 1974 TPO") was amended so as to extend it to "all land owned by or under the care, control and management of the Royal Botanic Gardens and the Domain Trust" . The Trust is thus required, so it is said, to obtain the council's consent to remove the trees. (2) Alternatively, the removal of the trees is an activity within the meaning of s 110 of the Environmental and Planning Assessment Act 1979 ("the EP&A Act") and the Trust has not complied with the requirements of s 111 of that Act which require it to first give consideration to the likely effect on the environment of the removal of the trees. It is also alleged that the activity is one which is likely to significantly affect the environment within the meaning of s 112 of the EP&A Act and the Trust has not complied with the requirements of that section relating to the preparation, exhibition and consideration of an environmental impact statement in respect of the activity. (3) Further alternatively, the Trust does not have the power to lawfully remove the trees having regard to ss 7 and 8 of the Royal Botanic Gardens and Domain Trust Act 1980 ("the Trust Act") and the failure of the Trust to consider its duties and functions thereunder. (4) Again, further alternatively, the Trust failed to take into account relevant considerations and took into account irrelevant considerations in making its decision to remove the trees. (5) The Trust owed a duty of procedural fairness to the public and the council before deciding to remove the trees and such procedural fairness was denied. (6) The removal of the trees without the consent of the Heritage Council would be contrary to s 57(1) of the Heritage Act 1977 and would, therefore, be unlawful since no such consent has been obtained. (7) The decision to remove the trees is manifestly unreasonable. 3 I should observe at this stage that these proceedings were expedited. In deference to the thorough and carefully formulated submissions of the parties I would have preferred to give a reserved judgment. In view of the facts that the proceedings were expedited, that the trees are presently fenced off in the Domain, that the part of the Domain which is fenced off is not available to the use of the public, and there is a suggestion that at least some of the trees may be unsafe, I should nevertheless deliver judgment now. 4 The Trust decided to remove eleven trees and replace them with another thirty-three trees. At the time of commencement of these proceedings the Trust had already removed five of the eleven trees. Of the six trees remaining, it is agreed by the experts that one tree should be removed on the ground of its health and age, two trees need not be removed on the ground of their health and age, but there is no agreement about the need to remove another three trees on the ground of their health and age. It must be emphasised that the removal of the trees is not being done solely on account of their age or condition. The purposes of the Trust include replanting the area along Hospital Road with new trees so as to restore Hospital Road to an avenue-like appearance, as it apparently was historically. What is proposed relates to that overall aim as well. 5 Because of the relative urgency with which a decision is required in the present case I will not attempt to describe the evidence in as much detail as I otherwise would. I propose to deal with each of the grounds relied upon by the council in turn. 6 First, as to the TPO: on 25 March 1974 the council made a tree preservation order under the then City of Sydney Planning Scheme Ordinance 1971 ("the CSPSO"). The TPO expressly excluded from its operation the Royal Botanic Gardens and the Domain. On 27 December 1996 the Central Sydney Local Environmental Plan ("the Cental Sydney LEP 1996") was made and by cl 8 of that instrument all previous environmental planning instruments, including deemed environmental planning instruments, which related to the area of the City of Sydney were repealed. The Central Sydney LEP 1996 did not have any transitional provisions providing that any tree preservation order under the CSPSO continued in force. On 19 April 2004, that is some three days before the commencement of these proceedings, the council passed a resolution which was in the following terms: Pursuant to clause (8)(1) of the Environmental Planning and Assessment Model Provisions 1980 , the provisions of the Tree Preservation Order of the Council of the City of Sydney, adopted by Council on 25 March 1974 are hereby varied by resolution of the Council of the City of Sydney dated 19 April 2004 in the following terms: That the Tree Preservation Order of the Council of City of Sydney be amended so that it applies to all land owned by or under the care, control and management of the Royal Botanic Gardens and Domain Trust in the local government area of the City of Sydney This order is published pursuant to clause 8(4) of the Environmental Planning and Assessment Model Provisions 1980. General Manager Council of the City of Sydney 7 In these circumstances the applicant council says that the trees cannot now be removed without its consent. The council relies upon s 30 of the Interpretation Act 1987 to say that the 1974 TPO continued and has always continued in force, notwithstanding cl 8 of the Central Sydney LEP 1996. 8 In this respect I have to say that I find the submissions of Dr J E Griffiths SC, who appears with Mr J K Kirk for the respondent, persuasive. That is to say, the operation of s 30 of the Interpretation Act cannot support the continued operation of a tree preservation order made under a repealed piece of legislation. 9 In Victorian Chamber of Manufacturers v Commonwealth (1943) 67 CLR 347 Latham CJ said (at 372): If the statute is repealed without a saving clause, then the by-laws made under it cease to have effect ( Watson v. Winch [ (1919) 1 KB 688 ] ). Section 8 of the Acts Interpretation Act 1901-1941, which preserves rights accrued and liabilities incurred under repealed Acts, does not operate to make it possible to enforce, as if it were in continued operation, an Act or a by-law made under an Act after the Act has been repealed: See Victorian Stevedoring and General Contracting Co. Pty Ltd. and Meakes v. Dignan [ 1931) 46 CLR 73 at 106 ] - "Upon the disallowance of the regulation it can no longer be relied upon as a source of liability" . 10 A holding to a similar effect was adopted by Barrett J in ISPT Nominees Pty Limited v Chief Commissioner of State Revenue (2003) 53 ATR 527, [2003] NSWSC 697, at [167] of that judgment: Moreover, even if s.49 did operate in the manner for which the Chief Commissioner contends, s.30 would not, in my opinion, apply to a delegation of power. Where an Act enables the making of delegated legislation there can be no doubt that repeal of that Act also effects the repeal of any delegated legislation unless there is some provision to the contrary: Bird v John Sharp & Sons Pty Ltd [(1942) 66 CLR 233] ; Surtees v Ellison (1829) 9 B & C 750; Watson v Winch [1916] 1 KB 688. This is so notwithstanding the existence of s. 30 of the Interpretation Act 1987 and its equivalents. For example, in Bird v John Sharp & Sons Pty Ltd none of the members of the High Court saw any need to consider the operation of s.8 of the Acts Interpretation Act 1901 (Cth) which is, and was then, couched in terms identical to those of s.30 of the Interpretation Act 1987. Similarly, in Watson v Winch , the English Court of Appeal concluded that the repeal of a statute providing for the making of delegated legislation effected the repeal of any delegated legislation so made notwithstanding the existence of s.38(2) of the Interpretation Act 1889 (Eng). In other words, the making of delegated legislation is not something "done or commenced under the Act" for the purposes of s.30(1)(b) of the Interpretation Act 1987 and the right to make delegated legislation, conferred by the enabling statute is not a "right ... acquired" for the purposes of s.30(1)(c) of the Interpretation Act 1987. 11 In the present case the terms of the council's resolution of 19 April 2004 clearly amount to a purported amendment of the 1974 TPO. In the light of the authorities to which I have referred I must accept the submission of the respondent that the council's attempt to amend a non-existent piece of delegated legislation is ineffective. It follows that the 1974 TPO is no longer in effect. 12 The second question is whether the removal of the trees is an activity within the meaning of s 110 of the EP&A Act. That question is one of fact and degree. It depends on the particular circumstances. There have been many authorities on the meaning of what is and what is not an activity within the meaning of s 110 of the EP&A Act. For example, forestry operations have been held to be an activity. But what is proposed here cannot be compared to the kind of extensive clearing that occurs in forestry operations. 13 In the present case, the proposal involves the removal of eleven trees of which six trees still remain to be removed. The question then is whether in the context of the Trust's activities that is an activity to which the section refers. Some helpful guidance is gained from the judgment of Bignold J in Rundle v Tweed Shire Council (1989) 68 LGRA 308. Bignold J held that it is relevant to consider the essential nature of the acts involved and their relative magnitudes of scale and intensity. In that case his Honour held that the spraying of a herbicide, known as 2,4-D, on a rural property of some 1000 hectares was not an activity for the purposes of the section. 14 Dr G A Flick SC, who appears for the council, relies in particular upon that part of the definition of "activity" in s 110 of the EP&A Act, as being "the carrying out of a work". Again, the question of whether something is a work is a matter of fact and degree: see Green v Kogarah Municipal Council (2001) 115 LGRA 231 at 250 and Parramatta City Council v Shell Company of Australia [1972] 1 NSWLR 483 at 489. It is not particularly helpful to go to the various cases which decide whether a particular work is an activity within the meaning of the section because each case turns upon its own facts. 15 In the present case, having regard to the fact that the council has defined the relevant environment as including "the Domain, the Botanic Gardens and the adjoining locality", it does not seem to me that the removal of eleven trees where there are over three thousand trees in that area amounts to the carrying out of a work and thus is an activity within the meaning of Pt 5 of the EP&A Act. Even if I were wrong in so holding, the evidence satisfies me that the requirements of s 111 of the EP&A Act have been observed by the Trust in the particular facts of this case. Moreover, in the context of the removal of eleven trees out of over three thousand trees, I am inclined to the view that the activity, if it is an activity, is one that is not likely to significantly affect the environment. 16 Next it is said that there is no power to lawfully remove the trees having regard to the Trust's duties and functions under the Trust Act. It is necessary to look briefly at that Act. Section 7 sets out the principle objects of the Trust and s 8 sets out the powers of the Trust. Those sections are as follows: 7 Principal objects of Trust (1) The principal objects of the Trust are: (a) to maintain and improve the Trust lands, the National Herbarium and the collections of living and preserved plant life owned by the Trust, (b) to increase and disseminate knowledge with respect to the plant life of Australia, and of New South Wales in particular, and (c) to encourage the use and enjoyment of the Trust lands by the public by promoting and increasing the educational, historical, cultural and recreational value of those lands. (2) When acting in pursuance of its objects, the Trust shall give particular emphasis to encouraging and advancing the study of systematic botany, and to plant conservation. 8 Powers of Trust (1) The Trust may: (a) permit the use of the whole or any part of the Trust lands for activities of a scientific, educational, historical, cultural or recreational nature, (b) in or in connection with the Trust lands provide, or permit the provision of, food or other refreshments and apply for, hold or dispose of any licence, permit or other authority in connection therewith, (c) in pursuance of its objects, procure specimens and obtain scientific data from within or outside the State, (d) maintain, or make arrangements for the maintenance of, the property of the Trust, (e) in pursuance of its objects, carry out surveys, assemble collections and engage in scientific research, including research outside the State, with respect to botany and ornamental horticulture, (f) disseminate scientific information to the public and educational and scientific institutions, whether within or outside the State, (g) promote and provide exhibits, lectures, films, publications and other types of educational instruction relating to botany and ornamental horticulture, (h) subject to the regulations, charge and receive fees or other amounts for, or in connection with, any service provided, article sold or permission given by the Trust in its exercise of any of the powers granted to it by this section, which fees or other amounts shall be the property of the Trust, and (i) enter into any contract or arrangement with any person for the purpose of promoting the objects of the Trust. (2) Subject to this Act and the regulations, the Trust shall have the control and management of all property vested in the Trust. (3) The Trust may agree to any condition that is not inconsistent with its objects being imposed on its acquisition of any property. (4) Where, by gift inter vivos, devise or bequest, the Trust acquires property, it may retain the property in the form in which it is acquired, subject to any condition agreed to by the Trust under subsection (3) in relation to the property. (5) The rule of law against remoteness of vesting does not apply to a condition to which the Trust has agreed under subsection (3). (6) The Stamp Duties Act 1920 does not apply to or in respect of any gift inter vivos, devise or bequest made or to be made to the Trust. (7) The Trust may establish such committees as it thinks fit for the purpose of assisting it to exercise and perform its powers, authorities, duties and functions. (8) A person may be appointed to a committee whether or not the person is a trustee. (9) The Trust may establish, control and manage branches or departments with respect to the Trust lands, or any part thereof. (10) The Trust shall have, and may exercise and perform, such powers, authorities, duties and functions, in addition to those specified in this section, as are reasonably necessary for the attainment of its objects, but may borrow money only in accordance with Part 4. 17 Again the submissions of Dr Griffiths are to be preferred. The express powers, in particular those in ss 8(1)(d), 8(2) and 8(10) of the Trust Act, suggest that in this case the Trust was properly performing its powers, duties and functions in deciding to remove the trees in question and in deciding to replace them with thirty-three trees. 18 In relation to the fourth ground raised by the council, namely a failure to take into account relevant considerations and a taking into account of irrelevant considerations, the evidence is extensive and detailed. In view of the need to deliver a judgement immediately it is appropriate to refer to the principal matter upon which the council relies rather than detail the whole of the evidence that has been placed before the Court. I am satisfied, however, that the Trust did take into account all the considerations that had been advanced by the council and which the council says were not considered. The principal consideration which the council says that the Trust failed to take into account is the historical and cultural significance of the trees in question. From the description of the proposal it is clear that the Trust intends to recreate a sense of the former historical avenue that existed in Hospital Road in the early 1800's and in seeking to achieve that aim the Trust was clearly endeavouring to recreate the original historical context of this section of the Domain. It seems to me that the Trust was thereby taking into consideration the historical significance of the whole area of that section of the Domain in the vicinity of Hospital Road and not just the particular trees in question. 19 The council has not identified any particular irrelevant consideration which was said to have been taken into account. 20 As to the question of whether or not the Trust owed a duty to afford procedural fairness to the public, Dr Flick relies upon what was said by Deane J in Haoucher v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 648 at 652-653. The passage relied upon is as follows: There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just. In that regard, it is important to bear in mind that the recognition of an obligation to observe procedural fairness does not call into play a body of rigid procedural rules which must be observed regardless of circumstances. Where the obligation exists, its precise content varies to reflect the common law's perception of what is necessary for procedural fairness in the circumstances of the particular case. In some cases where the requirements of procedural fairness are applicable, nothing less than a full and unbiased hearing of each affected individual's case will satisfy them. In other circumstances, something less may suffice. Thus, the circumstances of a particular case may be such that procedural fairness does not require that each person affected be accorded an effective opportunity of being personally heard before a decision is made but nonetheless requires that the decision-maker be, and appear to be, personally unbiased (see, e.g., Jackson, Natural Justice , 2nd ed (1979), p 100). Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making (cf. Halsbury's Laws of England , 4th ed (1989), vol 1(1), par 85) and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances. 21 It should be noted that the comments of Deane J are aimed at the rights, interests, status or legitimate expectation of a person or entity in an individual capacity as distinct from merely as a member of a section of the general public. Deane J made a similar observation in his earlier judgment in Kioa v West (1985) 159 CLR 550 at 632: In the absence of a clear contrary legislative intent, a person who is entrusted with statutory power to make an administrative decision which directly affects the rights, interests, status or legitimate expectations of another in his individual capacity (as distinct from a member of the general public or of a class of the general public) is bound to observe the requirements of natural justice or procedural fairness. (Emphasis added.) 22 I am thus not persuaded that the general public or the council as a section of the general public, as distinct from a person in his or her individual capacity, were entitled to be afforded procedural fairness before the Trust made its decision to remove these trees. In any event, the evidence shows that there was clearly some notice to the general public of the Trust's intention to remove the trees and the public were invited both to inquire and to make their views known to the Trust. 23 Moving to the question of the Heritage Act, the relevant provision is s 57(1) of that Act, which prohibits any person from damaging or destroying any tree or other vegetation, or to remove any tree or other vegetation from any heritage place, precinct, or land. However, the Minister under s 57(2) has the power to grant an exemption from sub-s (1) or such of the provisions of that subsection, as are specified in an order published in the New South Wales Government Gazette. In the present case, by order published in the Gazette on 17 November 2000, the Minister granted an exemption from s 57(1) of the Heritage Act in respect of the engaging in or carrying out of activities by or on behalf of the Royal Botanic Gardens and Domain Trust as set out in a schedule to that order. The schedule lists a number of activities which are exempted from s 57(1) and which include, inter alia, "[r]outine horticultural maintenance and management", "[t]ree management and arboricultural programs consistent with the Trust's (RGBDT [sic]) thematic and collections policy", and "[r]emoval or pruning of trees which are a danger to the public and staff". 24 It seems clear to me that the removal of the trees that may, and in one case admittedly is, a danger to the public, clearly falls within the exemption of "[r]emoval or pruning trees which are a danger to the public or staff". As to the removal of the remaining trees in question in the present case, it seems to me that the removal falls within the exemption of "[t]ree management and arboricultural programs consistent with the Trust's (RGBDT [sic]) thematic and collections policy". One of the Trust's thematic and collections policies is its intention to recreate the historical sense of avenue along Hospital Road. The council has thus not satisfied me that the removal of the trees in the present case will infringe s 57(1) of the Heritage Act. 25 As to the final question of whether the removal of the trees is manifestly unreasonable, I simply refer to the expert evidence. Mr I English conceded that it was reasonably open to adopt the approach of the Trust in achieving the objective, that is the objective of achieving the recreation of the historical sense of avenue along Hospital Road by removing the eleven trees in a block and planting thirty-three trees in their place. Prof J Weirick also conceded that the option of removing eleven trees in a block and planting thirty-three trees was one which was available to the Trust. Under these circumstances it cannot be said that the decision of the trust to remove the eleven trees in question was manifestly unreasonable. 26 That, I think, deals with all of the points raised by the council, albeit in a somewhat cursory way; but as I have said the urgency of the mater requires that a judgment be delivered as soon as possible. Is there anything else? DR FLICK SC: Your Honour two matters. One is just as a matter of courtesy to your Honour and with a view to cavil with your Honour's reasoning. I don't think your Honour dealt with the contention that even if the tree preservation order had been repealed and was no longer in existence whether the acts taken on 19 April constituted the making of a tree preservation order by reference to-- 27 HIS HONOUR: I am of the firm view that, as expressed, it does not. DR FLICK SC: Just as a matter of courtesy, so it is addressed. I thought that may have been your Honour's view. The second matter your Honour is, as I understand it, the respondent Trust is to continue the undertaking that it has presently given for a period of time to allow instructions to be obtained as to what if further action will be taken. Then the only question is until when? DR GRIFFITHS SC: I have instructions to extend that undertaking for what I believe to be the requested period, namely fourteen days from today. 28 HIS HONOUR: I note that undertaking. DR GRIFFITHS SC: Your Honour we would also seek costs of the proceedings. DR FLICK SC: Can I ask your Honour to do two things? One is to reserve the question of costs at least until such time as we see your Honour's written reasons so that we can address them and secondly, I think it would be our preference the Court retain the exhibits at least for the short time. 29 HIS HONOUR: The exhibits may be returned after fourteen days unless otherwise directed. DR FLICK SC: May we respectfully inquire of your Honour as to when it may be expected that we will get the written reasons? 30 HIS HONOUR: This is always a problem. It drives us around the bend I'm afraid. An urgent request will be put in for a transcript and we'll just keep our fingers crossed. I formally reserve the question of costs. The formal orders are as follows: The Court notes an undertaking given to the Court on behalf of the Royal Botanic Gardens and Domain Trust not to take any step of, or incidental to, the removal of the trees identified in the Minister for the Environment press release dated 14 April 2004 for a further period of fourteen days from the date of these orders. The Court orders that: (1) The application is dismissed. (2) The question of costs is reserved. (3) The exhibits may be retained with the Court file for fourteen days from the date of these orders. I hereby certify that the preceding 30 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

City of Sydney Council v Royal Botanic Gardens and Domain Trust

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