Pittwater Council v A1 Professional Tree Recycling Pty Ltd

Pittwater Council v A1 Professional Tree Recycling Pty Ltd - [2009] NSWLEC 21 - NSWLEC 2009 case summary — Zoe

[23]

"In my opinion, the vegetation (except for the areas cleared on earlier occasions) which was cleared is the remainder of the natural vegetation of the land." (b) neither Mr Wright nor any other person carried out any research into the history of ownership of the land or what activity/uses were carried out; (c) Mr Wright did not examine aerial photographs taken in the 1940s, one of which (taken in 1947) was put to him in cross-examination, to ascertain whether the vegetation on the land had been altered by anthropogenic activities during modern urban settlement. Mr Wright in effect resiled from the opinion in paragraph 12 of his affidavit when that photograph was put to him. 19 In considering the defendant's submissions, two matters need to be borne in mind. First, there is a distinction between the investigation and the evidence for the trial. Section 257D(1)(a) is only concerned with the investigation, not with the evidence at trial. An investigation may not be unreasonable, yet evidence for the trial may be deficient. In the present case, Mr Wright's first affidavit, which was not read at the trial but which was tendered on this costs application, appears to have been deficient. No doubt that is why it was substituted by another affidavit of which notice was given shortly before the trial. 20 Secondly, it is necessary to keep in mind that the parties advanced competing constructions of the first limb of the definition of "bushland" in the TPO, which were critical to the outcome of the successful no case to answer submission. The correct construction was a matter of some difficulty. The prosecutor's construction was that the first limb applies if, when the alleged offence occurred, the vegetation on the land was its "natural" vegetation even if the vegetation on the land had previously been altered. An aerial photograph taken in 1947 and put to Mr Wright in cross-examination showed that vegetation on the land had been altered by clearing in 1947. I preferred the defendant's construction that the first limb of the definition was concerned with the natural vegetation that remains out of natural vegetation that has not been altered (in the context of urban planning). However, in my opinion, the prosecutor's construction was reasonably arguable and if Mr Wright's investigation provided support for the application of the first limb of the "bushland" definition on that construction, the investigation could not be said to have been conducted in an be unreasonable manner. If that is so, then in this costs context it is not to the point that I preferred the defendant's construction. In my opinion, the evidence as to that investigation does provide support to the application of the first limb of the "bushland" definition on the prosecutor's construction. Indeed, had I accepted the prosecutor's construction, then having regard to that evidence I do not think that the no case to answer submission could have succeeded. 21 The evidence discloses that when Mr Wright carried out his investigation, he was well qualified to do so. He had over 16 years experience in assessing natural vegetation and making recommendations for its restoration and re-vegetation. He had been a Natural Resources Officer for the prosecutor council since 2001 prior to which he had been a bush regenerator. He held the degree of Bachelor of Science in Natural Resource Management from Macquarie University and a Bush Regeneration Certificate from TAFE NSW and was a part-time teacher of Natural Area Restoration at TAFE North Sydney Institute. He had had about 15 years experience in assessing natural vegetation and making recommendations for its restoration and re-vegetation.

[24]

22 Further, at the time of his investigation, Mr Wright was familiar with this site because he had visited it and the adjoining property on at least three occasions in the previous 12 months in relation to other complaints of clearing. In the course of his investigation of the complaint which led to the charge, he visited the site where he observed that approximately 3,300 square metres of bushland, consisting of heath species including, but not limited to, Banksia ericifolia and Allocasuarina distyla, had been removed. His prior knowledge of the site supported by photographs that he took enabled him to say that prior to the clearing, the vegetated parts of the site were largely covered with those two species which, as is common ground, are native species. Photographs showed those species comprising vegetation which remained standing. At the time of the alleged offence, the land was already partly cleared. Thus, the investigation by a well-qualified and experienced expert and council officer established that the cleared vegetation was the remainder of natural vegetation. 23 The defendant submits, however, that even on the prosecutor's construction of the first limb of the definition, the investigation was not reasonable, because Mr Wright did not expressly say in his investigation report or affidavits that the cleared vegetation was the "natural vegetation of the land". I do not think this is accurate because in paragraph 12 of his affidavit Mr Wright expressed the opinion that the vegetation cleared on the occasion of the alleged offence, which he had earlier identified as native vegetation, was the "natural vegetation of the land". In my view, that opinion was supported by his experience and knowledge of the site including some 15 years of experience in assessing "natural vegetation", to which he referred in his affidavit. The prosecutor submits that, in any case, it was implicit in Mr Wright's account of his investigation, a submission I am inclined to accept.

Parties

Applicant/Plaintiff:

Pittwater Council

Respondent/Defendant:

A1 Professional Tree Recycling Pty Ltd

Legislation Cited (2)

Industrial Relations Act 1988(Cth)

Conciliation and Arbitration Act 1904(Cth)

Cases Cited (16)

CITATION : Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) [2009] NSWLEC 21

Bostik (Australia) Pty Ltd v Gorgevski ( No 2) (1992) 36 FCR 439 Canceri v Taylor (1994) 123 ALR 667 Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 Fosse v DPP [1999] NSWSC 367 Halpin v Department of Gaming and Racing [2007] NSWSC 815 JD v DPP & Ors [2000] NSWSC 1092 CASES CITED: Kanan v Australian Potal and Telecommunications Union (1992) 43 IR 257 Latoudis v Casey (1990) 170 CLR 534 Pittwater Council v A1 Professional tree Recycling Pty Ltd (No 2) [2008] NSWLEC 326 Port Macquarie-Hastings Council v Lawlor Services Pty Ltd; Port Macquarie - Hastings Council v Petro (No 7) [2008] NSWLEC 75 159 LGERA 87 R v Moore; Ex Parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470 Thompson and Others v Hodder and Others (1989) 21 FCR 467 Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 9) [2008] NSWLEC 248

JUDGMENT 1 HIS HONOUR: This is an application for costs by the successful defendant in a prosecution for alleged unlawful clearing of bushland contrary to a council tree preservation order. I upheld a submission by the defendant that there was no case to answer and dismissed the summons: Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 2) [2008] NSWLEC 326. 2 The defendant submits that the prosecutor should pay the defendant's costs because:

(3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003. 5 It is common ground that the prosecutor was acting in a public capacity and therefore s 257D(2)(a) is inapplicable. 6 Section 257C and 257D commenced on 13 July 2006 but the same or similar provisions have had a longer history in other legislation. Such provisions negative the majority view in Latoudis v Casey (1990) 170 CLR 534 that generally when a prosecution fails an order should be made that the prosecutor pay the defendant's costs. In Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 9) [2008] NSWLEC 248 Jagot J reviewed the cases which had considered the same or similar provisions in other legislation at [5] - [12]: R v Moore; Ex Parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470 at 473; Kanan v Australian Potal and Telecommunications Union (1992) 43 IR 257; Canceri v Taylor (1994) 123 ALR 667; Fosse v DPP [1999] NSWSC 367; JD v DPP [2000] NSWSC 1092; Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 (FC); Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13; Halpin v Department of Gaming and Racing [2007] NSWSC 815; as well as Port Macquarie-Hastings Council v Lawlor Services Pty Ltd; Port Macquarie - Hastings Council v Petro (No 7) [2008] NSWLEC 75 which considered ss 257C and 257D.

(1992) 36 FCR 439

(1994) 123 ALR 667

(2006) 156 FCR 275

(1992) 43 IR 257

(1990) 170 CLR 534

(1978) 140 CLR 470

(1989) 21 FCR 467

(1976) 26 FLR 257