Cooke v State of New South Wales

Land and Environment Court (NSW)|2014-09-08|Before: Pepper J, Mr J, Biscoe J

Mr Cooke Saves Nine Fig Trees From Being Cut Down 1Mr Ian Cooke, the applicant in these proceedings for final injunctive relief, is President of the Save the Trees Group, an organisation formed in April 2014 for the sole purpose of protecting nine fig trees ("the trees") located upon the grounds of Alstonville Primary School ("the school") on Main Street, Alstonville, located within the local government area of the Ballina Shire Council ("the council"). The trees are within the grounds of the school. 2Each of the trees is greater than six metres in height. When Mr Cooke was at school in 1945, he recalls that the trees were tall enough and broad enough for children to climb. According to Mr Cooke the trees also provide shade on the western boundary of the school. 3On 24 February 2014 a branch from one of the fig trees the subject of this proceedings fell into the neighbouring school, St Joseph's. Fortunately, nobody was hurt. 4Thus on 8 March 2013 and 14 March 2014 the respondent, the State of New South Wales ("the State"), obtained two reports from Northern Tree Care, authored by Mr Peter Gray, concerning the health of the trees. 5In reliance on the Gray report dated 14 March 2014, the State proposed to remove the trees on the basis that they posed a risk to human health or safety and that such removal was thereby exempt development pursuant to cl 31 of the State Environmental Planning Policy (Infrastructure) 2007 ("the SEPP"). Therefore it was not necessary to obtain the consent of the council, which would otherwise have been required by the Ballina Local Environmental Plan 2012 ("the LEP"). 6Clause 31(1)(b) of the SEPP relevantly provides as follows: 31 Exempt development (1) Development for any of the following purposes is exempt development if it is in connection with an existing educational establishment and complies with clause 20: ... (b) the removal or lopping of a tree because the tree poses a risk to human health or safety or if the removal or lopping is in accordance with the State government publication School Facilities Standards-Landscape Standard -Version 22 (March 2002). 7Mr Cooke disputed that the trees posed the risk described in the 14 March 2014 Gray report. It appears that in doing so he had the support of both the Alstonville Public School Parents and Citizens Association Inc and the council. 8In the decision of Cooke v State of New South Wales [2014] NSWLEC 82 Biscoe J summarised the contents of the 2013 and 2014 Gray reports as follows (at [8]): 8 The 2013 report at page 8 concludes that there is a risk of harm in relation to the nine trees in question of one in 1,200,000. It recommended that the trees not be removed. The 2014 report at page 3 sets out that the benchmark acceptable risk is one in one million for imposed risk. The only benchmark referred to in the 2013 report was of an acceptable risk of one in 10,000. The probability of risk occurring, according to the second report, is one in 62,000. Therefore, the applicant submits, the report writer, who was the same for each report, is now saying the risk of harm is 20 times more likely in 2014 than it was in 2013. The 2014 report says that the trees are inappropriate species for such a confined space in the school. There was no suggestion of that in the 2013 report. 9In addition, Biscoe J stated (at [9]) that the 2014 report disclosed that "it is considered likely that this work [that is, work done between 2013 and 2014 to the roots of some of the trees by way of excavation and possibly also some pruning of limbs] has caused the trees to decline and become prone to failure of tree branches and potentially whole tree failure". However, a table on page eight of the 14 March 2014 Gray report nevertheless, and somewhat inconsistently, recorded that the condition of each tree in question to be in good health. 10Mr Cooke had made known to the State his reasons for his opposition to the removal of the trees by way of a letter to the school dated 26 May 2014. In this letter, Mr Cooke had requested permission for an expert arborist to enter the school grounds to undertake an independent assessment of the trees. There was no reply to his letter. 11Between 27 May and 5 June 2014, Mr Cooke, on behalf of the Save the Trees Group, sent a number of letters to the Hon Don Page MP, the State member for Ballina, asking for Mr Page's support in relation to saving the trees. 12By letter dated 19 June 2014 (sent on 20 June 2014) to the State, Mr Cooke: (a)asked the State for confirmation of the date on which it intended to remove the trees; (b)requested that the State respond to his letter dated 26 May 2014; (c)sought an undertaking from the State that it would not remove the trees for a period ending 14 days after he had received a report commissioned by him from an arborist assessing the health of the trees; and (d)foreshadowed the seeking of an injunction in the event that no such undertaking was received. 13No response was received by Mr Cooke to his letter. 14On 20 June 2014 Mr Cooke personally attended the school grounds and observed that the contractors had arrived and were fencing off the trees. It was as a result of these observations that he instructed his solicitor to apply for an injunction. 15Therefore, no doubt motivated by his understandable and highly commendable desire to save the trees, and based on his criticisms of the 2013 and 2014 Gray reports, Mr Cooke sought and obtained an interlocutory injunction from Biscoe J on 20 June 2014 (Cooke v State of New South Wales). 16The terms of the injunction were that the State was prevented until further order from removing or pruning the trees located at the school. Further, the State was ordered to permit Mr Cooke's nominated arborist to have access to the trees for the purpose of preparing a report to be tendered in final proceedings. 17By consent the injunction was extended on 27 June 2014 and 11 July 2014 until further notice. 18On 20 June 2014 Mr Cooke also filed a summons in this Court seeking the following relief: That the Respondent be restrained from removing or pruning the nine fig trees located at Alstonville Primary School at Alstonville NSW, and being more particularly the nine fig trees described in the Northern Tree Care reports dated 8 March 2013 and 14 March 2014. 19On 18 July 2014 the matter was before the Court for mention. It was the position of the parties at this time that the injunction should be made on a final basis. The parties disagreed, however, as to the terms of the injunction, and in particular, as to the circumstances in which the restraint would no longer apply. 20Mr Cooke filed points of claim on 25 July 2014. Relevantly the relief claimed by him was as follows: 1 That the Respondent be restrained from carrying out any Vegetation Management Works as defined by the Ballina Development Control Plan 2011 [sic] that affect one or more of the 9 fig trees located at Alstonville Primary School at Alstonville, NSW, and being more particularly the 9 fig trees described in the Northern Tree Care Reports dated 8 March 2013 and 14 March 2014 ("the fig trees") unless and until: a. the respondent obtains a development consent or permit issued by the Ballina Shire Council permitting the carrying out of Vegetation Management Works on one or more of the fig trees; or b. the respondent obtains an arborist's report (other than a report from Northern Tree Care) prepared by an Australian Qualification Framework level 5 arborist with Diploma of Arboriculture which concludes either i. that one or more of the Fig Trees are in need of vegetation management works because the tree poses a risk to human health or safety; or ii. is in accordance with the State government publication School Facilities Standards - Landscape Standard - Version 22 (March 2002); in which event this restraining order shall lapse but only to the extent permitted by the consent or permit referred to in a. above, or only in respect of the one or more of the fig trees the subject of the said conclusion of the arborist report referred to in b. above, and then only after the expiration of 21 days after compliance by the Respondent with order 2 hereof. 2 In the event that either or both of the events referred to in order 1a. or 1b. occurs, then the Respondent shall serve a copy the consent [sic] or permit obtained, or as the case may be, a copy of the further arborist's report, on the Applicant by serving a copy of same upon the applicant at 18 Palermo Place, Alstonville NSW 2477, and a copy upon the Applicant's solicitors at Office I, Level 1, The Plaza Alstonville NSW 2477. 3 In the alternative to orders 1 and 2, that the Respondent be restrained from removing or pruning the 9 fig trees located at Alstonville Primary School at Alstonville, NSW, and being more particularly the 9 fig trees described in the Northern Tree Care Reports dated 8 March 2013 and 14 March 2014 other than in accordance with a consent or permit granted pursuant to its powers under any other law. ... 7 That the Court note that Order 1 does not restrain the Respondent from pruning or performing such maintenance work or emergency work (as defined in the State Environmental Planning Policy (Infrastructure) 2007 on the 9 Fig Trees PROVIDED THAT none of the trees are removed and that such pruning or maintenance or emergency work does not extend beyond such work as is reasonably necessary and does not impact on the character and amenity of the 9 Fig Trees to any marked degree. 21Plainly this relief differed markedly from the relief sought by Mr Cooke in the summons. However, no application to amend the relief claimed was made by Mr Cooke until today. 22On 1 August 2014 the State filed its defence. In that document the State admitted that pursuant to the LEP, development consent or a permit granted by the council was necessary in order to remove or prune the trees. It also admitted that under the Ballina Development Control Plan 2012 ("the DCP") consent was needed pursuant to cl 3.1.2 to carry out vegetation management works affecting any tree with a height of six metres or more. Further, the State admitted that the development was not exempt development because the trees did not pose a risk to human health or safety for the purposes of cl 31 of the SEPP. 23The basis for these admissions, especially the latter admission, was the service by Mr Cooke on the State of a report commissioned by him and prepared by Mr Mark Hartley of the Arborist Network, dated 24 June 2014 ("the Hartley report"). 24The Hartley report contained a review of the 14 March 2014 Gray report. The Hartley report concluded that the trees did not pose a risk to human health or safety. The State accepted this conclusion, and admitted that, on the basis of the recommendations contained in the Hartley report, any proposed tree removal was not exempt development for the purposes of cl 31 of the SEPP and that it would require development consent or a permit from the council in order to proceed with the removal of the trees. The State conceded that it had neither the requisite development consent nor a permit issued by the council. 25The State nevertheless opposed the relief sought in the summons because, as framed, the relief: (a)sought to impose a restraint that went beyond preventing it from acting upon the recommendations of the 14 March 2014 Gray report, and moreover, would continue indefinitely; (b)would have the effect of preventing the State from ever carrying out exempt development pursuant to cl 31 of the SEPP at a time in the future at which it was able to obtain a report other than the 14 March 2014 Gray report that indicated that the trees posed a threat to human health or safety; (c)would prevent the State from obtaining a lawful development consent or a permit from the council to carry out the work in accordance with s 76A of the Environmental Planning and Assessment Act 1979 ("the EPAA"); and (d)would prevent the State from lawfully removing the trees in the future pursuant to any lawful means that may have been enacted or made permissible. 26Accordingly, the State proposed the following form of order as an appropriate form of relief: That the Respondent be restrained from removing or pruning the 9 fig trees located at Alstonville Primary School at Alstonville, NSW, and being more particularly the 9 fig trees described in the Northern Tree Care Reports dated 8 March 2013 and 14 March 2014 other than in accordance with an exemption pursuant to Ballina Local Environmental Plan 2012 or State Environmental Planning Policy (Infrastructure) 2007 or a consent or permit granted pursuant to any such instrument or pursuant to its powers under any other law.

Mr Cooke Seeks to Amend the Summons 27Presumably as a result of the matters raised by the State in its points of defence against the Court making the restraint sought in the summons, and because the relief claimed in the points of claim did not accord with that sought in the summons, Mr Cooke sought to amend the summons at the commencement of today's hearing. 28This late application to amend was made without any explanation for the delay by Mr Cooke in seeking the amendment (see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [34]-[35], [92]-[93], [102]-[103], [106] and [109]). It has resulted in the third iteration of the relief that Mr Cooke seeks. It relevantly states: 1 That the Respondent be restrained from carrying out any Vegetation Management Works ("works") as defined by the Ballina Development Control Plan 2011 that affect one or more of the 9 fig trees located at Alstonville Primary School at Alstonville, NSW, and being more particularly the 9 fig trees described in the Northern Tree Care Report dated 14 March 2014 ("the fig trees"): a. in reliance upon the report of Northern Tree Care dated 14 March 2014; b. otherwise than in accordance with law. 2 In the event the respondent intends to carry out works on the trees in accordance with an exemption pursuant to Ballina Local Environmental Plan 2012, or State Environmental Planning Policy (Infrastructure) 2007, ("the exemption") the respondent shall no less than 21 days before carrying out the works give notice in writing to the addresses stated below to the applicant of its intention to carry out works and serve upon the applicant at 18 Palermo Place, Alstonville NSW 2477, and at the Applicant's solicitors at Office I, Level 1, The Plaza Alstonville NSW 2477, a copy of any arborist's report relied upon by the respondent in deciding to carry out the works in accordance with the exemption. 29Because the State did not oppose the filing of the amended summons, and because the amendment did not prejudice the State and would not result in the hearing not concluding within its allocated time, the Court granted leave to Mr Cooke to file and rely upon the amended summons. 30The first prayer for relief in the amended summons is consented to by the State. On this basis the Court is prepared to grant this relief. While admissions have been made by the State, no undertakings have been proffered by it that would obviate the utility of making the injunction sought.

Should the State Be Required to Give Notice to Mr Cooke of Any Intention to Carry Out Works in the Future on the Trees? 31The real gravamen of the dispute between the parties before the Court was whether or not the Court should grant the relief in the second prayer for relief contained in the amended summons. 32Mr Cooke submitted that the restraint proposed in prayer 2 was not onerous, was easily understood, was inexpensive and was simple to comply with. In addition, the restraint was necessary because: (a)first, if notification was not given, the trees could once again be removed on the erroneous basis of the State having formed the opinion that the work was exempt development because the requirements of cl 31 of the SEPP had been met. In other words, notification is required in order to prevent the same mistake from occurring; (b)second, there had been no attempt by the State to explain its error in deciding to remove the trees. Reliance on the 14 March 2014 Gray report was not sufficient given its "self evident inadequacies" and internal inconsistencies; (c)third, at no time did the State engage with any of the parties opposing the removal of the trees. The State did not respond to the letter sent by Mr Cooke to the school on 26 May 2014. In that letter the deficiencies in the Northern Tree Care reports were outlined. That letter included a request to enter the school grounds, which was ignored. Further, the State did not respond to Mr Cooke's letter dated 19 June 2014 or to any of the correspondence from the member for Ballina, the Hon Don Page MP; and (d)fourth, the State gave no consideration to some lesser form of intervention other than the total removal of the trees. Were it not for the injunction obtained on 20 June 2014, the trees would have been unlawfully and irrevocably removed. 33Therefore, Mr Cooke asserts, the past conduct of the State requires the imposition of the relief sought in prayer 2 because the State has shown an inability to take appropriate action in relation to the trees. 34In support, Mr Cooke relied on the decision of the Victorian Supreme Court in Environment East Gippsland Inc v VicForests (2010) 30 VR 1. In that case Osborn J was prepared to make orders that the defendant notify the plaintiff within 28 days in writing of any intended resumption of logging within the disputed lands ([2010] VSC 416 at [11]). 35In that case the plaintiffs sought to restrain the logging of four coupes of old growth forest located in the valley of Brown Mountain Creek which, in part, comprised remnant old growth forest. The plaintiff claimed that the logging proposed would breach the conditions pursuant to which the defendant was permitted to lawfully undertake timber harvesting. In particular, the plaintiff contended that the proposed logging would breach the defendant's obligations to provide habitat reserves for endangered species and/or to proceed in accordance with the precautionary principle in habitat preservation for these endangered species. 36His Honour came to the view that the evidence established the detection of the Long-Footed Potoroo within the coupes and that the detection triggered a requirement under the relevant controls for the provision of a special management zone and habitat retention area. He also concluded that the evidence established the presence of exceptionally high densities of Greater Gliders and Yellow-Bellied Gliders within the coupes, and that the detection of these exceptional densities triggered a further requirement under the relevant controls for the provision of special management zones. Moreover, his Honour held that the requirements of the Code of Practice for Timber Production meant that the defendant had to comply with that principle when conducting timber harvesting and the application of the precautionary principle required the completion of further field studies in respect of two species of endangered frogs and the completion of re-evaluations with respect to management area provisions relating to various avian fauna. 37Thus, the Court concluded, initially at least, that an injunction should be granted in order to give effect to this conclusion and that because of the ecological importance of the area, notification was required for any proposed further logging. The proposed notification requirements were articulated by Osborn J in the following way ([2010] VSC 416 at [11]): ... In my view the defendant should be required: (a) to provide to the plaintiff within 14 days of their final approval by the Director, maps delineating any special management zone, special protection zone, long-footed potoroo retained habitat area, powerful owl management area or sooty owl management area, created within or including any part of the coupes; (b) to provide to the plaintiff within 14 days of their approval by the Director, Biodiversity Policy and Programs, DSE, copies of any surveys in respect of the giant burrowing frog, large brown tree frog and spot-tailed quoll completed within the coupes; and (c) to provide to the plaintiff 28 days' notice in writing of any intended resumption of logging within the coupes. 38The case, however, is distinguishable on its facts for the reasons I elaborate upon below.

The Granting of Relief Under Section 124 of the EPAA 39Sections 122 to 124 of the EPAA relevantly provide as follows (emphasis added): 122 Definitions In this Division: (a) a reference to a breach of this Act is a reference to: (i) a contravention of or failure to comply with this Act, and (ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, ... 123 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. ... 124 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. ... 40The discretion of s 124 of the EPAA is wide (F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 at 311-313 per Street CJ; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 338G; ACR Trading Pty Ltd v Fat-Sel Pty Limited (1987) 11 NSWLR 67 at 82D and Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; (2012) 190 LGERA 119 at [10]-[12]). 41In Sedevcic, Kirby P articulated a number of guidelines applicable to the exercise of the Court's discretion under s 124 of the EPAA (at 339C-341C). It is not necessary to set these principles out in this judgment. Suffice to say that where appropriate, the Court has had regard to them in arriving at its determination.

The State is Not Required to Give Notice to Mr Cooke 42In my opinion, it would not be an appropriate exercise of the Court's discretionary power under s 124 of the EPAA to make the orders sought in prayer 2. 43This is because, first, on the evidence before the Court I am not satisfied that a breach of the EPAA "will, unless restrained by order of the Court, be committed" if the order is not made (s 124 of the EPAA). The word "will" in s 124 of the EPAA is suggestive of a high degree of probability, which Mr Cooke was not able to demonstrate on the facts of this case. Merely because the State previously relied upon a flawed arborist's report does not mean that it will, or even that it is likely, to do so in the future. Indeed, the conduct of the State since its receipt of the Hartley report indicates the contrary. That is to say, upon being presented with that report, the State acted properly and promptly in conceding that the development was not exempt development. All action to remove the trees immediately ceased. 44Although Mr Cooke is highly critical of the State for not responding to his correspondence and for not agreeing to halt the removal of the trees until such time as he was able to obtain his own arborist's assessment of the health of the trees, I do not think that the State acted unreasonably. While Mr Cooke contends that the deficiencies in the Gray reports were self-evident, hindsight is not only a wonderful thing, it is just that - hindsight. The 14 March 2014 Gray report was not so obviously flawed that it should have been rejected by the State. The State was entitled to rely on the Gray reports until such time as the Hartley report was served upon it. In other words, the State was entitled to assume that at all times it was acting lawfully until such time as its actions were challenged in an appropriate forum. The conduct of the State in relation to this matter does not disclose a pattern or history of wilful disregard of environmental and planning protection laws that would warrant the imposition of the notification requirements proposed. 45Accordingly, having not found that a breach of the EPAA "will" be committed by the State in the future, the Court has no power under s 124 of that Act to make the order sought in prayer 2. 46Second, I agree with the State that what is proposed in prayer 2 is a significant overreach that, in effect, places Mr Cooke in the role of a de facto regulatory authority. The relief has no proper nexus to the provisions of either the SEPP (which, to the extent that it requires notification, the State would have to comply with in any event), or the LEP (which, to the extent that development consent is sought from the council, Mr Cooke may or may not be entitled to notification of the development application). The order seeks to regulate the actions of the State in a manner that the environmental planning instruments do not, in my view, contemplate. It may be presumed that if Parliament had intended that interested parties were to be notified of any exempt development proposed to be undertaken it would have made legislative provision for this in the SEPP, LEP or DCP. It has not. 47Third, the terms of the order are vague and uncertain. Given that the effect of the order is to operate in perpetuity, greater precision is required. For example, the ambit of the word "exemption" is not clear. Does it include only present exemptions or does it also capture all future exemptions that may be mandated? Other potential difficulties arise in circumstances where Mr Cooke either dies or moves from the nominated address. Is the State obliged to give notice to his estate, or must it take steps to locate Mr Cooke's whereabouts elsewhere? 48Fourth, although there is force in Mr Cooke's argument that once the trees are removed they are gone for all time, the fact remains that their removal will not be able to be undertaken by the State quickly or in the dead of night. That is to say, the preparatory works that will be required to remove the trees if they pose a hazard to human health and safety in the future or the process of obtaining development consent, will mean that, in a practical sense, notice will be given to either Mr Cooke or one of the members of the Save the Trees Group, in the same way that notice was given to Mr Cooke of the attempted removal of the trees that resulted in the interlocutory application before Biscoe J and that has resulted in the proceedings before the Court today. That Mr Cooke was able to obtain an interim injunction at short notice demonstrates that protective mechanisms exist to prevent the harm to, and destruction of, the trees. 49Fifth, unlike the subject matter of VicForests, these trees are neither endangered nor threatened, and do not provide critical habitat to any threatened or endangered species. And whereas the notification requirements imposed by the Court in that case could be justified given the facts of that case, the same cannot be said here. 50Sixth, the requirement to notify Mr Cooke 21 days before the carrying out of any works to the trees would deny the State the ability to urgently prune or remove trees that had, by reason of, for example, disease or a significant wind event, become dangerous to human health and safety in the future. It must be remembered that these trees are located on the grounds of a primary school. It must also be remembered that earlier in the year a branch from one of the trees fell into a neighbouring school. And while nobody was hurt, this was a matter of good luck, rather than good planning. In my view, it is imperative for the State to retain the ability to be able to act expeditiously in circumstances where the health and safety of school children, and anyone else entering the school grounds, is at risk. 51For all these reasons, it is not appropriate to make the relief sought in prayer 2.

Costs 52Given that the State agreed to the making of the injunctive relief in prayer 1 prior to the hearing of these proceedings, and given that the State conceded the factual matters giving rise to Mr Cooke's entitlement for relief in prayer 1 as at the date of the filing of its defence on 1 August 2014, it cannot be said, notwithstanding the fact that the Court will grant final injunctive relief against the State, that Mr Cooke has enjoyed success at the hearing of these proceedings. In particular, the entirety of the hearing was occupied by argument concerning prayer 2, in respect of which Mr Cooke has failed. 53However, the State does not make any application for costs. This therefore avoids any determination of whether these proceedings were brought, as Mr Cooke claimed, in the public interest pursuant to r 4.2 of the Land and Environment Court Rules 2007. 54Furthermore, the State properly concedes that Mr Cooke is entitled to the payment of his costs up until and including 1 August 2014, on the basis that had it not been for the commencement of these proceedings by him, the State would have engaged in unlawful conduct by the removal of the trees.

Orders 55The formal orders of the Court are therefore as follows: (1)that the respondent be restrained from carrying out any Vegetation Management Works ("works") as defined by the Ballina Development Control Plan 2012 that affect one or more of the nine fig trees located at Alstonville Primary School at Alstonville, NSW, and being more particularly the nine fig trees described in the Northern Tree Care Report dated 14 March 2014 ("the fig trees"): (a)in reliance upon the Gray report of Northern Tree Care dated 14 March 2014; (b)otherwise than in accordance with law; (2)that the applicant be released from his undertaking as to damages given to the Court on 20 June 2014; (3)the respondent is to pay the applicant's costs of the proceedings up to and including 1 August 2014; and (4)the exhibits are to be returned upon the publication of these reasons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 September 2014

(2012) 190 LGERA 119

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