Hunters Hill Council v Liu

Hunters Hill Council v Liu - [2018] NSWLEC 108 - NSWLEC 2018 case summary — Zoe

[7]

The relevant statutory provisions

There were three relevant provisions of the EP&A Act at the time of Ms Liu's offending conduct. They were ss 125(1), 125B(2)(b)(i) and 126(2A). The first of these provisions was in the following terms: 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
The second was in the following terms: 125B Maximum penalties for offences against Act: Tier 2 (1) This section applies to an offence against this Act under section 125 (1), other than an offence to which section 125A applies or an offence for which a tier 3 maximum penalty applies. (2) A person who is guilty of an offence to which this section applies is liable to a tier 2 maximum penalty, being a penalty not exceeding: (a) … (b) in the case of an individual: (i) $500,000, and (ii) ...
The third was in the following terms: 126 Additional provisions relating to penalties … (2A) Part 8.3 of the Protection of the Environment Operations Act 1997 (Court orders in connection with offences) applies to an offence against this Act or the regulations in the same way as it applies to an offence against that Act or the regulations under that Act, but only in relation to proceedings before the Court and subject to any modifications prescribed by the regulations under this Act.
As a consequence of the importation of Pt 8.3 of the Protection of the Environment Operations Act 1997 (the POEO Act) by s 126(2A) of the EP&A Act quoted above, both s 245 and s 250 of the POEO Act have the potential to be utilised to provide the foundation for the proposed remedial orders discussed later at [73] to [84]. The POEO Act provisions are, relevantly, in the following terms: 245 Orders for restoration and prevention The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow): (a) to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence, or (b) to make good any resulting environmental damage, or (c) to prevent the continuance or recurrence of the offence.

[11]

A more detailed outline of events

A more detailed outline of the relevant events can be seen from that which appears below (an edited version of portion of the SOAF): 1. An aerial photograph in Exhibit A showed that the two trees were located in close proximity to the boundary with Ms Liu's neighbour's property, but were definitely on the neighbour's property. Although the trees were cut down on 3 February 2016, Ms Liu's had met with the contractor prior to that date and given instructions about the removal of the trees; 2. A little after 9.00 am on the morning of 3 February 2016, following receipt of a complaint, three employees of the Prosecutor attended at Ms Liu's property. At the time of their arrival, they could hear chainsaws operating; 3. One of the Prosecutor's employees spoke to one of the contractor's team, requesting that the tree-cutting stop and this occurred; 4. The Prosecutor's employees were able to observe that the two trees had been cut down, with there being freshly cut stumps near ground level for each of them. One of the trees was lying on the ground, whilst the trunk of the other tree had been cut up into sections - with branches and the sections of the trunk piled up in the vicinity of that tree's stump. Photographs depicting this were in Exhibit A; 5. The Prosecutor's employees had a conversation with Ms Liu, a conversation which occurred under caution. An account of the conversation is contained in a Statement of Agreed Facts; 6. During the course of the conversation, as recorded in the Statement of Agreed Facts, Ms Liu offered two explanations for the removal of the tree. First, at (26) of the SOAF, she is noted as said: I wanted to remove the tree and branches because it was dropping leaves into my pool. 1. Later in the conversation, at (27) of the SOAF, Ms Liu is then noted as saying: My friend has hurt her foot and the tree was sparking with electricity in storms and I wanted to remove some trees. 1. The SOAF also records, at (28), that shortly after the conversation dealt with above, Ms Liu attended the Council Chambers. She had with her a Tree and Vegetation Management Application form seeking approval to cut down trees. At (28), the Statement of Agreed Facts records that a conversation took place to the following effect: MS LIU: I came into Council but then I realised it was going to be too expensive. COUNCIL: You have to follow the correct procedure. You need to lodge the permit application with Council. MRS LIU: The tree was sparking electricity in storms. COUNCIL: The tree you cut down was in the backyard and nowhere near electricity. MRS LIU: I wanted it cut down because it was dropping leaves into my pool. COUNCIL: It is written into our DCP that we do not remove trees for dropping leaves and fruit, that is not Council's problem. MRS LIU: I don't understand. COUNCIL: A fine will help you understand. 1. Ms Liu then left the Council, taking the application form with her; 2. The SOAF also records that Ms Liu had previously lodged a Tree and Vegetation Management Application with the Prosecutor on 25 June 2014. That application had been approved by the Prosecutor. Ten trees were approved to be removed at that time. A copy of that application and its approval were contained amongst the papers in Exhibit A.

[15]

The legislative provisions

A number of provisions of the Sentencing Procedure Act are relevant.
The first relevant provision in the Sentencing Procedure Act is s 3A Purposes of Sentencing. This provision is in the following terms: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
The second provision is s 21A Aggravating, Mitigating and Other Factors in Sentencing. It is not necessary, at this point, to set out the totality of this provision, but it will be necessary to deal with the relevant elements of it in my subsequent sentencing analysis.
The final provision of the Sentencing Procedure Act that is relevant is s 22, a provision that requires me to take into account Ms Liu's guilty plea. This provision is in the following terms: 22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, (d) and may accordingly impose a lesser penalty than it would otherwise have imposed. (1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.

[18]

Harm to the environment

The potentially relevant aggravating factor (contained in s 21A(2)(g)) requires my consideration of whether the harm to the environment caused by Ms Liu's unlawful activities was substantial or not.
The Prosecutor submitted, in his written outline of submissions, that I should conclude that the harm to the environment was substantial and thus a factor of aggravation.
Ms Hammond, counsel for Ms Liu, made the following concession on page 3 of her written submissions: It is accepted that environmental harm was caused as a result of the removal of the two Cheese Trees. The Defendant agrees with the Prosecutor's submissions in relation to environmental harm and its analysis of the parties respective ecology experts at [19] to [27] of its submissions. Mr Fanning, the Defendants ecology expert, does not consider that there is any likelihood of impact on Buffalo Creek as a result of soil erosion or sedimentation: Fanning report at [11, C]. However, Mr Fanning does accept that that some harm has resulted due to loss of wildlife habitat, albeit extremely minor in the circumstances: Fanning report at [14]. The Defendant accepts that the trees were in good condition and had a long useful life expectancy, although their significance rating was moderate only: Bundle, Tab 11. In the circumstances where there was no genuine arboricultural reason to support the removal of the trees, the Defendant accepts that the environmental harm caused is of some significance and thus a factor of aggravation: Willoughby City Council v Rahmani [2017] NSWLEC 166 at [31].
The two trees which Ms Liu ordered to be cut down were substantial specimens of their type. An assessment table concerning these trees was in evidence (Exhibit B, Tab 11). The trees were 12 and 15 metres in height (to the extent that this was able to be estimated from the remnants of the trees lying on the ground at the time of inspection by the Prosecutor's employees). Both of the trees were assessed as having the following characteristics:

five-metre canopy spread radius;
a trunk diameter of 250 millimetres and 400 millimetres at the top of the cut stump;
good vigour and condition;
a long life expectancy of 40 years or more;
a mature age class; and
a moderate significance rating.

The table from which this information has been taken was also accompanied, in the evidence, by an explanation of the final element of the above descriptors. Characterisation of the trees in this fashion is not, in fact, consistent with the elements in the accompanying table explaining the classification process.
I have carefully considered the photographic material in evidence depicting the stumps of the trees and such material as remain from them that was able to be inspected by the council officers. I am satisfied that the above described inconsistency is to be resolved by concluding, contrary to the final element of the tabular assessment of the trees, that, consistent with the earlier elements, when applied to the explanatory material, the trees should be characterised as having a significance rating of 2 (High significance).
All of this reinforces the validity of the concession made on behalf of Ms Liu that the environmental harm should be regarded as substantial and thus a factor of aggravation.
The concept of harm in the context of environmental offences is broad (Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419). There is no doubt, in these circumstances, that there has been actual environmental harm. I am satisfied on the basis of the evidence that this concession was one properly made and that the harm was sufficient to constitute a factor of aggravation.

[19]

Characterisation of Ms Liu's conduct

I have earlier set out the processes within the Prosecutor's planning controls that mandated the necessity for Ms Liu to seek the consent of the Prosecutor before removing any trees that were otherwise protected (as was the position with respect to the two trees removed as part of Ms Liu's offending conduct) prior to any such tree removal. In this assessment, I set aside, entirely, the fact that, in order to obtain the consent of the Prosecutor for the removal of these two trees, Ms Liu would also have had to have provided proof to the Prosecutor that the owner of the property upon which the two trees were located consented to their removal.
It was initially submitted on behalf of Ms Liu that, at worst, Ms Liu's conduct should be regarded as negligent rather than as either deliberate or reckless. The Prosecutor, on the other hand, submitted that I should conclude that her conduct resulted from an awareness of the necessity to obtain the Council's consent, coupled with a deliberate choice not to seek that consent. The Prosecutor also submitted that, if I were not minded to conclude that her conduct was deliberate, I should nonetheless conclude that she had acted recklessly in accepting the advice of the tree contractor that the Council's consent was not required. If I accepted either of the propositions advanced by the Prosecutor, the Prosecutor submitted that this constituted a factor of aggravation to be taken into account in the sentencing process.
During submissions, I drew Ms Hammond's attention to my recent decision in Hunters Hill Council v Carter [2018] NSWLEC 88 (Carter) and, following a short adjournment, she made the following concession in relation to the Ms Liu's state of mind (Transcript 8 June 2018, page 19 line 50 to page 20 line 5): … having read closely what your Honour says about the level of -- the state of mind at least in that case and given the similarities, the reliance on a contractor, I'm prepared to revise my submission about negligence in line and accept that recklessness is probably a better way of describing the state of mind taking on board what your Honour has said and picking up on Pepper J's comments as well.
There are three elements which caused me to conclude that the first proposition advanced by the Prosecutor is established to my satisfaction beyond reasonable doubt. Such a finding must be made to that standard of proof before I can have regard to it as establishing a factor of aggravation.
The three matters that cause me so to be satisfied are: 1. The material set out in the SOAF from (24) to (26) that Ms Liu made contact with the Council prior to the cutting down of these two trees; 2. Second, in evidence is an application which Ms Liu had made to the Council in 2014 seeking the Council's consent to the removal of ten trees and the Council's granting of consent for this purpose (Exhibit B, Tab 14). These two facts, taken together, are sufficient to draw the conclusion that her action was deliberate whilst knowing that consent was required; 3. In addition, appended to Ms Liu's affidavit and forming part of the evidence in these proceedings (Transcript 8 June, page 5 lines 31 to 34) was a copy of a quotation that she had obtained from the contractor who, in the ultimate, removed the two trees and did not remove any other vegetation. This quotation evidences that, at least at the time of it being obtained, Ms Liu contemplated the removal of a substantially larger number of trees and other vegetation than that which was, in fact, removed by the contractor. It is appropriate to infer that, at least for the purposes of this quotation, Ms Liu identified all those vegetation elements that were the subject of the quotation. For the purposes of these proceedings, the only conclusion that I draw from this quotation arises from the fact that the quotation identifies, amongst the items listed for potential removal within the scope of the quotation, "gum tree". This generic description fits, precisely, the generic description of the trees listed on Ms Liu's original application to the Council made in 2014. I am therefore satisfied that the inference that Ms Liu knew that trees with that descriptor required the consent of the Council prior to their removal is established. This reinforces (but is not necessary for the initial conclusion) that she chose to authorise the removal of the two trees subject to this charge in circumstances where she knew that the consent of the Council was required before that activity could be undertaken.

[31]

Classifying offending conduct within a range

I now turn to the task above of determining how I should classify Ms Liu's offending having regard to all the relevant factors.
In this instance, the Prosecutor submitted that I should conclude that Ms Liu's offending conduct should be characterised as being the middle of the range of seriousness. The Prosecutor said, in his written submissions: As the prosecution indicated orally to the Court when asked about the attitude to objective seriousness it was described as moderate that is to say towards the midpoint of objective seriousness of offences of this kind. Prosecution submit that in light of the factual findings that are open to be made with respect to: i The circumstances of the offending conduct, ii The resultant environmental harm, iii The maximum penalty available, iv The evident control over the causes of the criminal conduct, v The inadequacy of the defendants reasons for committing the offence, vi The foreseeability of the risk of harm being high and vii Ultimately the findings that are open to the Court with respect to the defendant's state of mind. The Court would agree that the characterisation that this offence, whilst not the worst example of offence, or the least serious example, is one that is towards midpoint.
On the other hand, Ms Hammond submitted that the Defendant's conduct should properly be characterised as the middle of the low range. She said, in her oral submissions on this point (Transcript 8 June 2018, page 20 lines 10 to 13): … my submission would be that the conclusion reached in terms of the offending conduct in Carter as being characterised as being in the middle of the low range of seriousness I would submit should be applied in this case.
These remarks were supplementary to her written submissions on this point where she wrote: Taking into account all the objective and subjective circumstances and the need for general deterrence, the Defendant considers that the offence falls within the higher end of low objective seriousness.
Having regard to all of the objective factors relating to Ms Liu's offending conduct (including the fact that I have concluded that there are factors of aggravation requiring to be taken into account), I am satisfied that her offending conduct is to be characterised as being in the middle of the low range of seriousness. As this expression is not one of terminological exactitude, in circumstances where I consider that Ms Liu's offending conduct is to be compared, principally, with the conduct of Mr Carter, for the reasons earlier described, it is appropriate that I indicate that, although using the same descriptor as I applied to Mr Carter, I consider that Ms Liu's offending conduct is a little more serious than that of Mr Carter, albeit only marginally so.

[33]

The remedial orders

It is to be observed that Pt 8.3 of the POEO Act provides for additional orders - orders which are to be in addition to, and not in substitution for, the penalty otherwise appropriate to be imposed.
The Prosecutor proposed orders (to be made pursuant to s 126(2A) of the EP&A Act) to address what the Prosecutor said was the necessity for an ongoing regime of: 1. arboricultural inspection of, and reporting on, the trees for a period of years into the future; 2. the furnishing to the Prosecutor of a copy of the arborist's report after each inspection; 3. implementation of any recommendations of the arborist arising out of each inspection; and 4. the timeframes within which these inspections were to be carried out.
Although counsel for Ms Liu agreed with some elements of the proposed orders, other elements were in contention.
In Carter, the Prosecutor proposed that there be a regime to monitor the surviving trees in order to ensure the best chance of their survival. This involved annual inspections by an arborist who would make recommendations about what action, if any, needed to be taken with respect to the various surviving trees. Mr Carter was to be obliged to give effect to those recommendations. The lengthy period of time over which those obligations were to remain upon Mr Carter was as a consequence of the fact that the arboricultural prognosis for those trees was not good in light of the fact that such further growth as had occurred since the topping/lopping had taken place was epicormic (as was likely to be the case in the future). Such epicormic growth was, and remains, prone to failure.
In this instance, Ms Liu is to be required to plant two entirely new, advanced stock replacement trees. These replacement trees are to be planted on her property and under the supervision of an arborist. The risks of such trees not surviving and flourishing is significantly less than had been the position in Mr Carter's circumstances. As a consequence, whilst I consider that a degree of arboricultural supervision, and the creation of an obligation for Ms Liu to adopt and implement any arboricultural recommendations, is desirable, it would be unnecessarily extravagant, in my assessment, for that requirement to be imposed for as many years as was the case with Mr Carter. As a consequence, I have decided that, after the initial planting of the replacement trees, the arboricultural supervisory regime to be imposed on Ms Liu should require assessment and implementation of any recommendations made by an arborist for a period of two years after the initial planting takes place.
The second element in Carter, concerning the arboricultural monitoring regime, was a proposal by the Prosecutor that that regime be underpinned by a public positive covenant in favour of the Prosecutor so that, if Mr Carter sold the property, that obligation would continue to fall on Mr Carter's successor-in-title. In the circumstances of that case, where Mr Carter and his wife were the joint owners of the property, I declined to impose such a requirement as I was satisfied it would not be possible to do so without the consent of Mr Carter's wife, she not being a party to the proceedings. As a consequence, in those proceedings, the specific requirement was that the supervisory regime lapses should the Carter's sell the property prior to the end of the expiry of the multiple-year supervisory regime.
In these proceedings, the Prosecutor similarly proposes that there should be a public positive covenant on the property to ensure that the arboricultural supervisory regime proposed should continue if Ms Liu disposes of the property.
In this instance, Ms Liu is the sole owner of the property so, as a consequence, there is no legal reason why such a public positive covenant could not be imposed. I am also satisfied that the imposition of a requirement to effect such a covenant would be within the range of orders rendered permissible by the scope of the application of Pt 8.3 of the POEO Act to prosecutions such as this one.
The fact that the replacement trees which Ms Liu is to be obliged to plant, coupled with the comparatively time-limited nature of the arboricultural supervisory regime, means that it would be a disproportionate additional cost penalty imposed on Ms Liu to require such a covenant. As a consequence, the appropriate provision is to incorporate, as with Mr Carter, a lapsing outcome for the ongoing requirements should Ms Liu sell the property.
However, it is appropriate to incorporate a requirement in the conditions that Ms Liu provide a copy of the arborist's report to the Council after each future inspection and that there be a limited period of time within which Ms Liu is to implement any recommendations of the arborist, with the implementation of those recommendations to require certification from the arborist. Ms Liu is to be mandated to provide a copy of that certification to the Prosecutor.
Such a regime, although imposing ongoing obligations on Ms Liu, would not, in my assessment, be too onerous a response to her removal of these trees from her neighbour's property.
I have settled the terms of the orders after considering the limited disagreement between the parties as to the obligations to be imposed and my determinations with respect to them.

[34]

Consistency in sentencing

Although each case needs to have its penalty assessed on its own particular facts and circumstances, nonetheless, the general concept of consistency in sentencing requires consideration to ensure that the sentence which is imposed is not completely disproportionate to the sentences imposed in other proceedings where the offending conduct might, in some fashion, be regarded as generally comparable.
Attached to the Prosecutor's written submissions was a table setting out a number of cases to which the Prosecutor submitted that I should have regard for the purposes of ensuring, as required, that the sentence which I imposed on Ms Liu was not inconsistent with the broad range of sentences which have been imposed for offences which might be considered to have some similarity with Ms Liu's offending conduct. The cases referred to in the Prosecutor's table were:

Pittwater Council v Scahill [2009] NSWLEC 12 (Scahill);
Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109 (Jarvest);
Hunters Hill Council v Gary Johnston [2013] NSWLEC 89;
Ku-ring-gai Council v Edgar [2017] NSWLEC 49 (Edgar);
Willoughby City Council v Rahmani [2017] NSWLEC 166;
Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177; and
Hunters Hill Council v Carter [2018] NSWLEC 84 (Carter).

The most recent of these cases, to which reference was made in the table, was my own decision in Carter. As can be seen from my decision in those proceedings at [111], all of the decisions referred to by the Prosecutor in these proceedings (with the exception, obviously, of Carter) were referred to in those proceedings. In Carter, for the reasons discussed, I considered that the decision of the Chief Judge in Scahill provided the greatest assistance in sentencing Mr Carter. However, in these proceedings, because of a range of significant similarities between the circumstances attendant on Ms Liu's offending conduct and those of Mr Carter's offending conduct, my decision in Carter provides such significantly relevant comparative circumstances that there is no need to go beyond that decision for comparative sentence analysis purposes.
There are, in addition to the significant elements in common between the offending conduct in these two instances, there are also a number of distinguishing circumstances which need to be taken into account in my sentencing consideration when comparing the two cases.
First, I turn to the matters that are in common between them. These are: 1. Ms Liu says she was advised by the contractor who removed the trees that no council approval was required for this to occur (Carter at [15]); 2. the two trees which Ms Liu had removed were substantial native trees; 3. the trees which Ms Liu caused to be removed were part of the canopy of the urban forest in the vicinity of the Buffalo Creek Reserve and of Buffalo Creek (Carter at [49]); and 4. the relevant planning instruments applicable to the Hunters Hill local government area at the time of the offending conduct, in each instance, where identical.
There are, however, some significant differences between the two sets of offending conduct. Those involving Ms Liu are the subject of separate analysis in this decision. It is, however, appropriate to note the areas where Ms Liu's offending conduct can be seen to differ from that of Mr Carter. These differences can be summarised as: 1. For the reasons set out at [38] to [41], I have been satisfied that Ms Liu's conduct was undertaken by her deliberately and with express knowledge that consent was required from the Council before removal of the trees could have been permitted. This is to be contrasted with Mr Carter's position where I concluded that he was reckless in his authorisation of the interference with the trees (Carter at [66]). Although, in both instances, the relevant circumstances constituted a factor of aggravation, Ms Liu's offending conduct, in this regard, was of greater significance; 2. In Mr Carter's case, although three of the trees died following the topping/lopping of them, the trees which survived and were producing epicormic growth were doing so in circumstances where that growth required considerable long-term arboricultural supervision (Carter at [104]). In this case, because Ms Liu caused the two trees to be removed in their entirety, rectification of the environmental harm is, to the extent that it is possible (noting that a limiting factor in achieving this arises as a consequence of the trees which were removed had been located on the neighbour's property), the two trees to be planted in replacement (being ones in 100-litre pots) and to be planted under the supervision of a qualified arborist, makes it more likely that those trees will re-establish and that less arboricultural supervision will be required for this purpose; 3. The trees which Mr Carter caused to be topped/lopped were trees located on his own property and thus, although the environmental harm was significant, the relevant mitigation measures could be implemented on his own property, whereas the trees which Ms Liu caused to be removed were on her neighbour's property and there is no evidence that her neighbour consented to their removal. The consequence of this, compared to the position in Mr Carter's case, is that such mitigation measures as are to be implemented to address the environmental harm caused by Ms Liu's removal of these trees cannot be implemented on the property where the harm had occurred. The consequence of this is that the environmental benefits available to the neighbour of having those trees on her property are no longer available and will not be replaced.

[36]

Orders

As a consequence of that which is set out above, the orders of the Court are: 1. Yueling Liu (the Defendant), is convicted of an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 in that, on 3 February 2016, by her servants, agents and/or contractors, she cut down two trees on land, being trees which were prescribed by a development control plan made by Hunters Hill Council (the Council) and which were prohibited from being cut down under cl 5.9(3) of the Hunters Hill Local Environmental Plan 2012 without the authority conferred by: 1. a development consent; or 2. a permit granted by the Council, where no such development consent or permit was granted beforehand; 1. The Defendant is fined the sum of $48,000; 2. The Defendant is ordered to pay the agreed sum of $35,000, within 28 days, direct to the Council, for the Council's costs and investigation costs and expenses; 3. Pursuant to s 126(2A) of the Environmental Planning and Assessment Act 1979 and s 245 of the Protection of the Environment Operations Act 1997, the Defendant is to: 1. retain a suitably qualified arborist, having a minimum qualification of AQF Level 5 (the qualified arborist), by 13 August 2018; 2. cause two 100-litre Cheese Tree specimens, Glochidion ferdinandi (the two Cheese Trees), to be planted on the land described as Lot 2 DP 586382 and known as 24B Barons Crescent, Hunters Hill (the land) by 10 September 2018, with the planting of the two Cheese Trees: 1. to be supervised by the qualified arborist; and 2. to be at a location on the land to the north of the existing swimming pool on the land, with the final location to be determined by the qualified arborist; and 3. with the Defendant notifying the Council, in writing, within seven days of the planting that the planting had taken place. 1. cause the qualified arborist to inspect the two Cheese Trees and provide written recommendations to the Defendant and the Council for the management of the said trees so as to ensure their ongoing health and structural integrity, after 1 July 2019 and before 14 August 2019; 2. carry out, or cause to be carried out, the written recommendations of the qualified arborist, under the supervision of the qualified arborist, within 28 days of receipt of the said written recommendations. 1. The requirements set out in orders 4(c) and (d) are to be carried out and complied with by the Defendant on one further occasion, with compliance required as follows: 1. the inspection and the making or written recommendations by the qualified arborist as referred to in order 4(c) is to be carried out after 1 July 2020 and before 14 August 2020, with the carrying out of the written recommendations as referred to in order 4(d) to be carried out within 28 days of receipt of the said written recommendations; 1. Within 14 days of compliance with the requirements of each of order 4(d) and 5(a), the Defendant is to provide a certificate from the qualified arborist to the Council certifying that the requirements of the relevant order have been complied with; 2. In the event that the Defendant sells the land prior to the expiration of the requirements of Orders 4, 5 and/or 6 above, these orders lapse from the date of settlement of the sale; and 3. The exhibits and the unread affidavits are returned.

At a glance

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Judgment (37 paragraphs)

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Cases Cited (25)

Cited By (6)