9 When application for development consent was originally made to it, the Byron Shire Council refused consent. However, an appeal was lodged in the Land and Environment Court and, on 15 March 1995, Assessor T Bly directed that development consent be granted. The land in respect of which consent to subdivision and development was sought was in an environmentally sensitive area both because it was in an area of a rare clay heath and because the scrubland enhanced the amenity of the Byron Bay area.
10 Assessor Bly imposed the following condition, inter alia, on the development consent:
"23. No tree to be ringbarked, cut down, lopped, removed or damaged or caused to be ringbarked, cut down, lopped removed or damaged in contravention of the Tree Preservation Order applicable to the land. Any tree or trees which require removal are to be shown on a plan of adequate scale for the approval of Council's Planning Manager prior to any works commencing."
11 In the proceedings below, neither side tendered the tree preservation order which was in operation at the time of Assessor Bly's order. However, the tree preservation order of 1991 ("the 1991 TP0") was tendered to this Court during the hearing of the appeal. The 1991 TPO provided, inter alia:
"No person shall cut down, lop, top, remove or wilfully destroy any species of tree, palm or fern exceeding three (3) metres in height, except with the written consent of Council being obtained beforehand. All coastal heathlands and mangroves of any height are covered by this order and consent within these areas for any lopping or removal of vegetation is required..."
12 It was the principal contention of the counsel for the respondent, Byron Shire Council, Mr T F Robertson SC, that the work that was carried out by the appellant on 13 and 14 March 2000 involved some removal of "coastal heathlands" and that no "approval of Council's Planning Manager" had been granted.
13 Mr M H Tobias QC, with whom Mr S A Duggan of counsel appeared for Detala, submitted that the word "trees" in condition 23 did not incorporate the low scrub which covered much of the land. In my opinion, the term "tree" in condition 23 must be read in the light of the 1991 TPO and encompassed all flora with which that order dealt, including "All coastal heathlands ... of any height".
14 Another aspect of condition 23 in issue is the reference to "prior to any works commencing". It was submitted by Mr Robertson that condition 23 made the approval of a tree plan a condition precedent of commencement of any works on the land. This submission was tied with the submission that condition 23 required consent under whatever tree preservation order was current at the time when works commenced.