Johnson v Angus

The Commissioner's interpretation of s 14A(1) of the Trees Act 11The Johnsons contend that the Commissioner erred in interpreting s 14A(1)(a) of the Trees Act in two ways: first, concerning the word 'planted' and secondly, concerning the word 'hedge' and the phrase 'so as to form a hedge'. 12In relation to the word 'planted', the Commissioner contrasted a tree that was planted by human agency, with a self-sown tree growing from a naturally falling seed. The Commissioner construed the word 'planted' as requiring the former and excluding the latter (at paras 22, 23 and 41). The Commissioner made a finding of fact that he was not satisfied on the evidence that the Turpentine had been planted (at para 23). 13The Johnsons submit that the Commissioner erred in his construction of the word 'planted'. They submit that 'planted' is interchangeable with 'situated' or 'located'. The Johnsons refer to meaning no 24 in the Macquarie Dictionary's definition of the transitive verb 'plant' of 'to locate or situate'. 14Hence, the Johnsons submit, the phrase in s 14A(1)(a), 'trees that are planted (whether in the ground or otherwise) so as to form a hedge', should be construed as only requiring that trees be situated or located in the ground or otherwise so as to form a hedge. The Johnsons submit that such a construction would allow for inclusion of trees that are self-sown, that is trees that grow from a naturally occurring seed. 15I reject the Johnsons' submission as to the meaning of the word 'planted' for two reasons. First, the word the legislature has used in s 14A(1)(a) is 'planted' and not 'situated' or 'located'. The choice of the word 'planted' must be seen to be deliberate. The word 'situated' is used abundantly elsewhere in the Trees Act and in each instance the word refers to the location of a tree on land: see, as examples, in Part 1 of the Trees Act, s 4(1), (2), (3) and (4); in Part 2, ss 7, 10(1) and 12; in Part 2A, ss 14A(2), 14B, 14C(1), 14D(1), 14E(1), 14(F) and 14(H); and in Part 3, ss 16(1) and (1A) and 17(1). Indeed, the legislature uses the word 'situated' in the same section, s 14A, where it also uses the word 'planted'. Section 14A(2) refers to 'trees situated on the following land', using the word 'situated' to refer to the location of the trees on the land. 16Notwithstanding this use of the word 'situated' in s 14A(2) and in many other sections of the Trees Act, the legislature chose to use a different word, 'planted', in s 14A(1). Indeed, the legislature has used the word 'planted' only once in the whole of the Trees Act and that is in s 14A(1)(a). To construe the word 'planted' as meaning 'situated', when the legislature chose deliberately not to use the word 'situated' but instead to use the different word of 'planted', would be to defeat the legislative intention. 17Rather, the word 'planted' in s 14A(1)(a) bears a meaning closer to meaning no 14 of 'plant' in the Macquarie Dictionary of 'to put or set in the ground for growth, as seeds, young trees'. In s 14A(1)(a), the trees can be planted not only in the ground but also otherwise, such as in pots. Nevertheless, trees that are planted are trees, in the form of seeds, seedlings or young trees, that are put or set in the ground or otherwise for growth. This meaning of 'planted' requires human agency to put or set in the ground or otherwise the seed, seedling or young tree for growth. A self-sown tree, that is a tree that grows from a seed that is self-sown without human agency, has not been planted. 18Secondly, a grammatical analysis of the sentence in s 14A(1) of the Trees Act corroborates the meaning of the word 'planted' in s 14A(1)(a) as being put or set in the ground by human agency. 19Section 14A(1) describes the type of trees to which Part 2A applies. The sentence states that Part 2A only applies to two or more trees that meet both of the criteria in paras (a) and (b). The group of words beginning with the word 'trees' in s 14A(1) through to the end of the sentence is a long, noun phrase. The long phrase does the work of a noun in the sentence. The noun phrase contains a number of shorter phrases, being the description of the noun 'trees'. This case concerns the phrase in para (a). 20The first part of the phrase is 'trees that are planted'. This is expressed in the agentless, passive voice. The subject of the phrase (the trees) is the recipient of the action of planting but the phrase is silent as to the agent performing the action of planting. 21There are two verbs in the first part of the phrase expressed in the passive voice: the auxiliary verb 'to be' in the form of the present indicative plural (are) and the main, transitive verb 'to plant' in its past participle form (planted). 22The first part of the phrase is expressed in the simple present tense (trees that are planted) rather than the simple past tense (trees that were planted) or the past perfect tense (trees that had been planted). On first impression, the use of the simple present tense might seem curious given that the action of planting a tree occurs in a finite and constrained time period; planting cannot be continuous. Once the action of planting the trees is completed, it could be said that the trees were planted or the trees had been planted. If either the simple past or past perfect tense had been used in s 14A(1)(a), the consideration would have been restricted to the past action of planting. However, the use of the simple present tense in s 14A(1)(a) expands the consideration so as to include not only the past action of planting the trees but also the current character of the trees as being planted. The action of planting has been completed but that action imparts the character of being planted to the tree and that character continues to the present and into the future for the life of the tree. That character distinguishes trees that are planted from trees that are self-sown. 23The choice of the simple present tense in this first part of the phrase becomes even clearer when the first part is considered in the context of the whole phrase. 24The phrase 'trees that are planted' is followed by the adverb clause of purpose 'so as to form a hedge'. The subordinating conjunction 'so as' indicates a relationship of purpose between the phrases 'trees that are planted' and 'to form a hedge'. The idiom 'so as to' means 'in order to' or 'with the result or purpose of' (Macquarie Dictionary). The idiom 'so as to' is always followed by the infinitive of a verb. In this case, the idiom is followed by the infinitive of the verb 'form'. The meanings of the transitive verb 'to form' include 'to make or produce; to serve to make up, or compose; serve for, or constitute' and 'to place in order; arrange; organise' (Macquarie Dictionary). 25In s 14A(1)(a), the goal of the verb 'to form' is 'a hedge'. Hence, the adverb clause of purpose 'so as to form a hedge' means 'with the result or purpose of making or producing a hedge'. Section 14A(1)(a) requires that this be the purpose that the verb 'planted' address. 26A tree that is self-sown can never satisfy the purpose stated in the adverb clause of purpose 'so as to form a hedge'. The action of being sown by an agency other than humans, such as by the wind or birds, is purposeless. Only the action of putting or setting a tree in the ground or otherwise by human agency is capable of satisfying the purpose in the adverb clause of purpose 'so as to form a hedge'. 27I return to my earlier observation that the phrase 'trees that are planted' is in the simple present tense. The simple present tense can be used to indicate that a fact or state of affairs was true before, is true now and will be true in the future; that an action happens all the time or habitually, in the past, present or future; or to make generalisations about people or things. 28In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present. 29This requirement for the state of affairs of the trees being planted so as to form a hedge to exist at the time of planting and to continue to the present, is a product of using the simple present tense and would not result if the simple past tense or the past perfect tense had been used. Expressing the phrase in either the simple past tense (trees that were planted so as to form a hedge) or in the past perfect tense (trees that had been planted so as to form a hedge) would have required only an examination at the time of planting of whether the trees were or had been planted so as to form a hedge, and not whether that state of affairs continues to the present. 30This analysis of the word 'planted' in the context of the adverb clause of purpose, 'so as to form a hedge', corroborates the construction I have earlier found that the word 'planted' means put or set in the ground or otherwise by human agency. 31For these reasons, the Commissioner did not err in interpreting the word 'planted' in s 14A(1)(a) as requiring human agency to put or set a tree in the ground or otherwise for growth and as excluding a self-sown tree. 32The second error of interpretation the Johnsons submit the Commissioner made involves the word 'hedge' and the concept of 'so as to form a hedge'. 33The Commissioner found that the Turpentine, even if it could be found to have been planted, did not form a hedge. The Commissioner was of the view that the Turpentine was separate, and distinctly so, from the palms that he found did form a hedge, in several ways. First, the Turpentine was distinctly older than the palms, the Turpentine being perhaps 60 or even 70 years old while the palms were perhaps 15 or 20 years old (para 28). 34Secondly, the Turpentine appeared as a distinctly individual tree in the landscape. The Commissioner held that: [i]t is considerably larger than the nearby palms. It has a dense crown from low on its stem and leaves like a gum tree. The palms, on the other hand, have several long fronds at the tops of bare stems. The palms, although there are two species, appear relatively uniform along the planting. The Turpentine's appearance makes it a separate landscape feature, and not part of this otherwise homogenous group of plants (para 29). 35Thirdly, although the Commissioner accepted that there was no requirement for all trees in a hedge to be planted at the same time, in the present situation, he found: the Turpentine appeared first, as a solitary tree, and a group of very different trees was then planted along the boundary up to this tree. It was certainly not a hedge when it grew here and has not become part of one. Its age, size, form and appearance all make it a separate tree, and distinctly so (para 30). 36The Johnsons submit that the Commissioner erred in concluding that a hedge cannot include a separate or distinctively individual tree within a group of trees. They submit that 'the appropriate question to be determined as to whether any group of trees is planted so as to form a hedge under s 14A is not age, size, form, appearance or the uniformity of remaining elements', as determined by the Commissioner 'but simply whether the two or more trees are sufficiently close and tall enough' (para 47 of the appellants' outline of submissions). They submit that, in this case, the Turpentine and palms were sufficiently close and tall enough to be a hedge. 37I reject the Johnsons' submission as to the meaning of the adverb clause of purpose, 'so as to form a hedge', for three reasons. First, the Johnsons' submission fails to inquire as to the purpose of the planting of the trees at the time of planting. The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are the subject of the application under s 14B of the Trees Act be 'trees that are planted ... so as to form a hedge'. As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue that state of affairs of being planted so as form a hedge. The requirement of being planted so as to form a hedge is to be understood as requiring that the trees be planted in order to form, or with the result or purpose of forming, a hedge. 38If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees. 39Accordingly, the Johnsons' submission, that the only question to be asked under s 14A(1)(a) is whether the trees are sufficiently close and tall enough at the time of determining the application under s 14B, involves asking the wrong question. It inquires of the present only and ignores the past. As I have said, s 14A(1)(a) requires examination of both the past and present to determine whether the trees are planted so as to form a hedge. 40Secondly, regardless of the time of inquiry, the two criteria proposed by the Johnsons' submission, namely being sufficiently close and tall enough, are not criteria or not the only criteria relevant to determining whether trees are planted so as to form a hedge under s 14A(1)(a). The criterion of being tall enough is a requirement of para (b) of s 14A(1) (the trees must rise to a height of at least 2.5m above existing ground level), but it is not a criterion under para (a) in order for the trees to form a hedge. The criterion of being sufficiently close is, however, relevant to determining whether the trees are planted so as to form a hedge. What is sufficiently close will depend upon the species of tree planted, the age of the tree, the health and growth of the tree, and the scale of the landscape. 41But the criterion of sufficient proximity does not exhaust the relevant criteria to be considered in determining whether trees are planted so as to form a hedge. Section 14A(1)(a), construed in its own terms and in the context of Part 2A, does not so circumscribe the criteria that may be considered in determining whether the trees are planted so as to form a hedge. Other criteria are relevant, including the species of trees planted; whether the trees are all of one species or different species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of the trees), function and growth of the trees; the planting arrangement of the trees, such as whether the trees are planted in a linear, curvilinear, or another spatial relationship conducive to the trees forming a hedge. 42The factors considered by the Commissioner in determining whether the Turpentine was planted so as to form a hedge with the palms (in paras 28-30) were not factors that were excluded as irrelevant by s 14A(1)(a) of the Trees Act. 43Thirdly, the Johnsons' submission fails to address the fundamental factual finding of the Commissioner, which prevented the Turpentine from being able to be described as being planted so as to form a hedge. The Commissioner found that the Turpentine was perhaps 60 or even 70 years old, while the palms were perhaps 15 or 20 years old. As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (paras 28 and 30). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine. 44For these reasons, I reject the Johnsons' submission that the Commissioner erred in law in his construction and application of s 14A(1)(a) of the Trees Act to the Turpentine.

The Commissioner's factual finding that the tree was not planted 45The second question of law raised by the Johnsons was that the Commissioner made a factual 'finding not reasonably open on the evidence'. This finding was that the Turpentine was more likely than not self-sown rather than planted (paras 22 and 23). 46At the outset, I should note that the Johnsons' submission does not raise a question of law. Section 56A restricts an appeal against a commissioner's decision to a question of law. A wrong finding or inference of fact on the evidence is an error of fact, not law. Even if the finding or inference of fact is one no reasonable commissioner could have come to on the evidence, it is still an error of fact and does not raise a question of law: Tesoriero v Leichhardt Municipal Council (1983) 51 LGRA 46 at 49; Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 141. An error of law only arises if a finding of fact is made where there is no evidence at all capable of justifying the finding: Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 at [76] and cases therein cited. 47This stringent test is not satisfied in this case. The Johnsons have the onus of proof to establish that the Turpentine had been planted and hence was a tree to which Part 2A of the Trees Act applied. There was no direct evidence demonstrating that the Turpentine had been planted (para 23 of the judgment). The Johnsons adduced evidence from an arborist who provided an aerial photograph taken in 1961. The arborist gave evidence as to the inference he drew from that photograph. The Commissioner recorded that the arborist stated in oral evidence that the tree could be seen as a shadow on the 1961 aerial photograph and that it was likely to have been planted or self-seeded during the 1940s (para 22). The Commissioner, however, drew a different inference from the photograph, as he was entitled to do. He observed that some clearing of the Angus' property had occurred but there was extensive remnant vegetation across the broader landscape. This suggested to the Commissioner that it was more feasible that the Turpentine grew from a naturally falling seed (para 22). The Commissioner expressed 'more than a little doubt' about the tree being planted (para 23). 48The Commissioner's inference of fact was available on the evidence. Even if he were to be wrong, that would be an error of fact and not of law. 49The Johnsons have not established that the Commissioner's decision on the Turpentine involved a question of law.

The Commissioner's finding of no jurisdiction 50The Johnsons' third question of law, that the Commissioner failed to exercise jurisdiction in respect of the Turpentine, was consequential on their establishing the first two questions of law. As I have held that neither of the first two questions of law have been established, the third also fails.

Conclusion and orders 51The Johnsons' appeal is therefore unsuccessful and the summons should be dismissed. There should be no order as to costs. 52The Court orders that the summons is dismissed.

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