The defendant in this Class 5 prosecution pleaded not guilty to a charge of removing, without consent, certain trees growing on land he did not own.
In the Council's summons, issued on 20 December 2012, Diaa Kara-Ali is charged that (emphasis mine):
... on or about 14 November 2011 at Matraville in the State of New South Wales, the defendant committed an offence against [section] 125(1) of the Environmental Planning & Assessment Act 1979 (the "[EPA] Act") in that the defendant did the following thing which was forbidden to be done by a council, namely Randwick City Council, which was authorised by or under the Act, other than by or under the regulations, to forbid that thing to be done:
The defendant, by his servants or agents, cut down four trees which were covered by Randwick City Council's Tree Preservation Order ["TPO"] made on 26 July 2005, without the consent of the Council.
An offence against s 125(1) is one of strict liability and a defendant can be convicted on the basis of vicarious liability: Power v Pentill House Pty Ltd (1993) 80 LGERA 247; Canada Bay City Council v Bird ("Bird") [2003] NSWLEC 9; 124 LGERA 303.
To succeed in this prosecution, it seems to me that the Council has to satisfy the Court, beyond reasonable doubt, of the following elements of the offence charged:
1. Council had authority to forbid the cutting down of the subject trees;
2. A TPO was in force and applied to the subject trees;
3. None of the exceptions to the prohibition in the TPO is/are enlivened;
4. The Council did not consent to the removal of the trees; and
5. The defendant caused or authorized the removal of the trees.
A change in the defendant's representation in June/July 2013, shortly after his original solicitor filed a "Notice of Defence Response" under s 247F of the Criminal Procedure Act 1989, caused some dislocation of the hearing (T13.8.13 pp149 - 155), with the result that there are, before the Court, no agreed or admitted facts (T14.8.13 pp179 - 180).
The hearing ran for eight days over four months, with the first five consecutive hearing days (12 to 16 August 2013) being taken up with the Council's case ("T1", pp1 - 408).
Maria Julie Papadeas ("Maria"), one of the owners (with her husband, "George" Dimetrius Papadeas) of the land on which the trees stood, swore one affidavit (on 2 November 2012) for the prosecutor, and was extensively cross-examined on it.
Council also relied, at the hearing, upon:
1. three affidavits sworn by its landscape development officer David Meredith (a principal one sworn 2 November 2012, plus two supplementary ones, sworn 26 July and 1 August, 2013), and his oral evidence;
2. an affidavit by Jeffrey Ryder, the tree lopper principal of the registered business "Tree Raider" (RBN 98582287);
3. an affidavit and oral evidence from Council enforcement officer Alana Nahlous;
4. an affidavit and oral evidence from Council's public officer David Kelly; and
5. oral evidence given by Bryan Andrew Bourke, Council's Tree Management Co-ordinator for some 18 years, and its officer most responsible for investigating the removal of trees outside the scope of any development approval.
Much of the prosecuting Council's documentary material was exhibited to Maria's affidavit, or to Meredith's primary affidavit, sworn 2 November 2012, to which I will mostly refer, without date. Additional copies of some of that material, and some additional materials, are found in other affidavits, annexures, and exhibits.
The hearing was then adjourned to 19 September 2013 (Day 6), on which date the defendant made a "no case" submission, which the Court refused (Tp19.9.13, p22).
The defendant then gave, and called, oral evidence in his defence, over that day and the next (20 September, Day 7). That evidence ("T2", pp1 - 188) was given by:
1. the defendant himself;
2. Christopher Miller, who was, as an employee of Mocon Civil Pty Ltd, the site foreman on the Kara-Ali project at the relevant time; and
3. Patrick Pang, a registered surveyor of 20 years' standing.
Some further documents were accepted as exhibits during that oral evidence.
There was no Council case in reply (T2, pp185 - 188), and an eighth day (11 December 2013) was appointed for counsel's submissions ("T3", pp1 - 60).
I have concluded that the charge should be dismissed, and my reasons follow.
The substantive judgment now commences with an introduction to the defendant and his building project on the property adjacent to that owned by the Papadeases, and from which the relevant trees were removed (section "B"). Those trees and Council's regulation of them will then be examined, as will the history of dealings between the neighbouring owners ("C", "D", and "E"). I will then summarize the evidence regarding the identity of the person or persons who actually removed the trees ("F"), before turning to examine the relevant evidence more closely ("G").
[3]
B: The Defendant and His Project
The defendant is a "man of education" (T3, p48, L34), being a masters-qualified, chartered civil, environmental and structural engineer, and an accredited engineering certifier (T2, p47, LL3 - 16).
He trades as "DK Engineering (Australia) Pty Ltd", a "Structural and Civil Consultant" (Exhibit D24), incorporated in 2008 with him as the only director and shareholder, and the secretary (ASIC search at Exhibit P9). He is also a builder, but not an architect or planner. He had an architect, but no planner, engaged on the project involved in this matter (T2, p68, LL8 - 19, and p78, LL42 - 48).
He also has "an arts degree in philosophy, and a masters degree in philosophy", which included ethics subjects, and he left for Oxford University, after giving his evidence, to pursue a doctorate of philosophy in political philosophy, studying political liberalism (T2, p60, LL30 - 45).
He was also described by the prosecutor (T3, p27) as a "highly intelligent developer" and "a relatively sophisticated individual".
At all relevant times, he was either the developer, or the building site manager, of land at No 491 Bunnerong Road, Matraville (Lot 1594 in DP 752015), which was owned by his father Michael Kara-Ali, and enjoyed Council's consent for a redevelopment. The defendant also acted as the structural engineer for the development, but employed a site foreman.
Some invoices for demolition and clean-up works done on No 491 (Exhibit D22) were addressed simply to "Diaa" at a company called "Australasia Development Aust. Pty Ltd", or similar, but the Court has no information about such a company. Those works would appear from those invoices to have been completed by 11 November 2011, and Council witnesses Meredith (his affidavit dated 26 July 2013), and Nahlous, annex photographs of site excavation, as at 22 February 2012 and 10 February 2012 respectively.
[4]
C: The Trees Which Were Removed
It is alleged that four Eucalyptus robusta ("Swamp Mahogany") trees were removed on 14 November 2011, by the defendant's servants or agents, from the land at No 493 Bunnerong Road.
No 493 is owned by Maria and George, as joint tenants (Meredith 2 November 2012, p4). It is located on the corner of Bunnerong Rd and Daunt Avenue (Exhibit P8), and is located generally south of No 491, although, wrongly and confusingly, some of the material shows the property immediately to the north of No 491 (No 489?) as "493".
While the defendant had Council's consent to remove certain trees from No 491, as part of his project, Council granted no such consent to anyone in respect of No 493 (Lot 1593 in DP 752015).
The subject trees are shown pre-removal in several photographs among the evidence (Meredith pp20 - 24, and Exhibit D20). Each was more than 6 metres in height, their trunks were less than 1 metre in circumference in November 2011 (T1, p248), and all were located within 2 metres of the 491/493 boundary. At least three of them were within 2 metres of where the side wall of the Kara-Ali building would be, if built to its approved plans (T2, p2). Late in the hearing ([42] below) the prosecution conceded that all four were within 2 metres.
In his affidavit of 1 August 2013 (par 3), Meredith revised his estimate of the height of the trees from "6 - 8m" to "10 - 14m".
Council asserts that all four trees were covered, at all material times, by the TPO, which applied to the land, and that none of them came within any of the exemptions set out in the TPO. The defendant initially challenged the validity of the TPO, but, in the end, relied only on its exemption provisions (T3, p21, LL12 - 20).
[5]
D: Tree Regulation In Council's Area
Council's making of the TPO (Meredith 2 November 2012, pp5 - 9, and Kelly annexure 'A') was enabled by Randwick Local Environmental Plan 1998 ("the 1998 LEP") cl 28 (p16).
It was drafted on 21 March 2005, pursuant to a process commenced by Council on 23 November 2004, it was publicly exhibited pursuant to a Council decision dated 26 April 2005, no public submissions were received, and it was adopted by Council on 26 July 2005 (pp11 - 12), and gazetted on 26 August 2005 (pp13 - 14).
Kelly deposed to the business records of the Council, exhibited to his affidavit, which confirm the status of the TPO as at the relevant date, 14 November 2011. He adhered to his affidavit in his oral evidence, and produced the official volume of Council minutes from which the exhibits to his affidavit had been drawn.
Bourke was questioned about whether Council's website accurately displayed for the public the tree preservation regime in place from time to time, including exemptions, and he gave evidence about the role now played in such matters by cl 5.9 of the 2012 LEP, which replaced the 1998 LEP, and is in "Standard Instrument" terms, and by Part B5 of Council's 2013 Development Control Plan ("DCP") (see T1, pp348 - 364), instead of a TPO.
The TPO in force at the date of the alleged offence covered (Meredith pp5 - 6, and 14, cl 3):
a. any palm tree, cycad or tree fern;
b. any tree in bushland;
c. any tree on public land; and
d. any other tree with:
i. a height equal to or exceeding 6 metres; or
ii. a canopy width equal to or exceeding 4 metres; or
iii. for a single trunk tree species, a trunk circumference equal to or exceeding one (1) metre at a height of one (1) metre above ground level; or
iv. for a multi-trunk tree species, a combined trunk circumference (measured around the outer girth of the group of trunks) equal to or exceeding one (1) metre at a height of one (1) metre above ground level.
Clause 4 (p6 - 7, and 14) provided:
Prohibition on ringbarking, etc, any tree
a. Subject to subclause (b) of this Clause 4 a person must not on land to which this TPO applies ringbark, cut down, top, lop, remove, injure or destroy any tree covered by this TPO without the consent of the Council.
Note: Pruning, transplanting, root cutting and poisoning a tree would come within this prohibition as would indirect activities that could injure a tree, such as altering the soil level by more than 200mm within 3 metres of the trunk of a tree. Consent for such activities is therefore required.
b. Subclause (a) of this Clause 4 does not apply:
i. where it can be demonstrated to the satisfaction of the Council that the tree is dying, dead or has become dangerous;
ii. where the tree is dealt with in accordance with a permit granted under Clause 5;
...
vii. to any tree growing within two (2) metres of any building comprising a residential dwelling (detached, attached or multi-unit housing) or any retail, commercial, factory, warehouse or storage building (not being an out building) measured horizontally from the closest point of the trunk at one (1) metre from ground level to the closest point of the vertical alignment of the building structure which may be the eave, guttering or fixed awning of the building;
...
ix. to the removal, transplanting or pruning of any tree of a species in the table below ... [the listed species are not here relevant, as the list does not include Eucalyptus robusta]
Clause 5 (pp7 - 8, and 14) provided:
a. Application for a permit to deal with a tree must be made in writing on the application form available from the Council and be accompanied by the administration fee determined from time to time by the Council.
...
d. In granting a permit the Council may impose conditions including but not limited to the following:
...
v. specifying the period during which the permit will remain in force being not more than one (1) year from the date it is granted;
...
Clause 6 provided for the offence here charged, and refers the reader to s 126 of the EPA Act for the penalty.
Council placed on its website for public information a less formal guide to the requirements of the TPO. The defence tendered a document said to be one page of it (Exhibit D1), and submitted that it was effective as at 14 November 2011, and relevant to these proceedings.
During the hearing that web material was shown to be wrong. In any event, the defendant's case is not that he relied on the information contained in it.
The Court also notes that Exhibit D1 is only page "1 of 4", it does not use the term "TPO" , the extract is headed "Trees on your own property", and it includes a marginal note suggesting the reader download a 2013 application form.
In response, the prosecutor tendered a screen-print of the website as at 1 July to 14 November 2011 (Exhibit P14).
Both web documents include the following:
You do not require a Council permit to remove/prune a tree if it is:
less than six (6) metres in height and/or less than four (4) metres across the canopy
or
less than one (1) metre in trunk circumference at one (1) metre above ground level.
Exhibit P14 is more complete than Exhibit D1, and includes the section "Trees on your neighbour's property". Those provisions apply "the same conditions about pruning and removing trees", as I have just quoted from the "... your property" section. If approval is required, an application form is linked (see Exhibit P20) - "your neighbour will have to give their (sic) consent" (provided for on the form), and a council tree officer must inspect before pruning takes place.
Council also tendered a section ("B5") of its "comprehensive" DCP, entitled "Preservation of Trees and Vegetation" (Exhibit P15). Like the TPO, the DCP, referring to cl 5.9 of the 2012 LEP, makes the following specific provisions (pp3 and 4):
Development consent
i) Development consent is required for tree works to any tree listed on Council's Register of Significant Trees.
Tree permit
i) A tree permit must be obtained for tree works proposed to any of the following (when development consent is not required):
a) any palm tree, cycad or tree fern of any size;
b) any tree on 'public land' (as defined in the Local Government Act 1993) by any persons not authorised by Council;
c) any hollow bearing trees; or
d) any other tree with:
- a height equal to or exceeding 6 metres;
- a canopy width equal to or exceeding 4 metres;
- for a single trunk tree species, a trunk circumference equal to or exceeding one (1) metre at a height of one (1) metre above ground level; or
- for a multi-trunk tree species, a combined trunk circumference (measured around the outer girth of the group of trunks) equal to or exceeding one (1) metre at a height of one (1) metre above ground level.
Exceptions
...
The additional exceptions include:
...
iii) The removal of any tree growing within two (2) metres of any building (excluding an outbuilding) measured horizontally from the closest point of the trunk at one (1) metre from ground level to the closest point of the vertical alignment of the building structure which may be the eave, guttering or fixed awning of the building.
...
At the end of Pang's oral evidence, which dealt with surveys he conducted of Nos 491/493 (see Exhibit D26), the prosecutor conceded (T2, pp135 - 136) that all four subject trees were located less than 2 metres from the closest wall of the proposed Kara-Ali building.
[6]
E: Dealings Between The Neighbours
The Papadeases describe their property at No 493 as an architecturally designed double storey home, built in about 1992.
As a modern domestic residence, it features eight bedrooms, three bathrooms, lounge, dining, living room, etc., and its design offered the flexibility to utilise the upstairs level as George's dental surgery (a practice established in Matraville for 30 years), and the downstairs area as a fully self-contained residence (Maria, affidavit 2 November 2012, p13).
Maria is an accountant by profession, but works as office/practice manager for George's dental practice. She used the two-bedroom downstairs section of No 493 as a residence, in which she lived with her elderly mother, from time to time until sometime in 2011, when construction work at No 491 became very noisy, but No 493 is not Maria's or George's principal place of residence.
In 2008, at Council's suggestion, the Papadeases contemplated amalgamating their property with others in the neighbourhood, to get the benefit of a planning regime which allowed the development of multi-unit housing. The then owners of 491 were not interested in a joint development, and Michael Kara-Ali, father of the defendant, purchased 491 sometime in 2009. At the time it was occupied by a single dwelling.
The defendant made several offers to the Papadeases to purchase 493, but they considered the offer below market value, and, on 4 December 2009, Diana Prowse of "Architectural Solutions", on behalf of the owner of 491, Michael Kara-Ali, lodged a development application form and accompanying plans ("DA" No 907/2009 - Exhibit P6). Michael Kara-Ali signed the owner's consent "box" on the form.
The Kara-Ali DA sought Council's approval to demolish the dwelling on No 491, and construct on 491 a part three/part six-storey mixed-use development, with basement car parking, across two levels, for 12 vehicles, a retail tenancy fronting Bunnerong Road, 11 residential units, and associated works, including the removal of some trees from the site. The DA relevantly showed the proposed building as extending to the common boundary of 491/493, and the estimated project cost was $2.1M.
The Papadeases planted the subject trees on No 493 some 25 years ago, very close to the 491/493 boundary (Exhibit D20), and preferred to retain them, largely, for aesthetic, amenity and privacy reasons (Exhibit D3). However, the defendant preferred, and suggested, the removal of the trees, because (1) his building work on No 491 would destroy their root system, insofar as it crossed the boundary, and/or (2) they would constitute a danger to the development work on No 491, and indeed to the development already in existence on No 493, and possibly to humans.
Eventually - but Maria says "reluctantly" - she and George came to the conclusion they had little choice but to agree to the removal of the trees, and, on 13 November 2011, they agreed, with the defendant, in writing, upon the terms on which they would consent to the removal of the trees, provided that the defendant obtained consent from the Council, and paid them compensation of $2000.
The trees appear to have been removed early the next day, 14 November 2011 (see Exhibit D18), as alleged by the prosecutor in the summons.
The defendant is charged with using "servants or agents" to cut down the subject trees, and, before I turn to review all the evidence in detail, I want to summarize, at this point, the evidence before me regarding the identity of the person or persons actually/physically responsible for the removal of the trees.
[7]
F: Evidence Regarding the Person(s) Responsible For the Actual Removal of the Trees
The evidence discloses a gradual deterioration in the relationship/dealings between the defendant and the Papadeases, and, by the end of the hearing, each of Maria and the defendant had accused the other of being responsible for removal of the trees (Exhibit P10, c.f. T2, p177, LL33 - 37).
In fact (as noted in [50] above), they had concluded a written agreement on 13 November 2011 about the removal of the trees (Exhibit P12). That agreement is set out in [116] below, and I will return to it, but essentially the Papadeases agreed that the defendant could remove their trees, on certain conditions, including his obtaining any necessary approvals.
Maria denies any part in having any person(s) cut down the trees (T1, pp228, 293 - 294).
She deposed (in those parts of pars 44 - 51 of her affidavit, as were allowed to be read):
44 The next day, on Monday 14 November 2011 at about 9.30am I heard some machinery coming from our backyard. I jumped up and ran into the staffroom which is at the back of the house. I saw three men and they were cutting down one of the four trees. I panicked and started yelling at them through the open window. One of the men who was up in the tree started lowering himself onto the ground. ...
45 I went downstairs and had a conversation with one of the men in words to the following effect:
Myself: "Stop! What are you doing? The Council has not approved the removal of these trees yet!"
Tree lopper: ...
Myself: "He has not got Council approval. Call him to check."
46 The tree lopper then made a telephone call from his mobile phone. He could not get through and he said to me, in words to the following effect:
Tree lopper: ...
Myself: "Well you are not cutting down these trees until Diaa confirms that he has permission from Council." What is your name and what company are you from?"
Tree Lopper: "I'm Jeff from Tree Raider".
47 I made sure to ask the tree lopper his name and company name because I wanted to know who to complain to if there was any damage to my property.
48 ...
49 ...
50 I left the men from Tree Raider and they cut down each of the four trees on my land. I did not instruct the tree loppers to cut down the trees at any stage.
51 Later that day, the Defendant came to see me in the surgery and we had a conversation in words to the following effect:
Myself: "That was quick - how did you get Council approval so quickly?"
Diaa Karaali: "Oh it was already sorted. I just had to pay the fee to Council and show them your owners consent."
Myself: "How did you get prior approval when I had not given owner's consent until Sunday?"
Diaa Karaali: "My certifier sorted it. It is in my construction certificate. All I had to do was lodge the form with Council."
Myself: "Did you give a copy of our agreement to the Council too?"
Diaa Karaali: "No they don't need to be involved in that. They just need to see your consent."
Jeffrey Ryder, in his unchallenged affidavit evidence, denied that he or his firm ("Tree Raider") had any involvement at all in the cutting down of the subject trees, or introducing himself to Maria in the way to which Maria deposed. Ryder has worked in the tree removal industry for 23 years, and holds a certificate in forestry.
Ryder denies ever meeting any of the defendant, George or Maria. He specifically denies having ever removed trees at the direction of any of them, or of DK Engineering, and also specifically denies having ever removed trees at 491 or 493. On 14 November 2011, Ryder was on a job at 72 Amos St, Westmead, and he annexed business records to support that assertion. His business operates as a single crew, and last did a job in Bunnerong Road in approximately in 2010. On at least one other occasion (in 2009) a tree removal crew had passed itself off as "Tree Raider" (par 13).
The defendant denied that he had the conversation to which Maria deposed in par 51 of her affidavit (quoted above in [56]), and he specifically denied all the comments she attributed to him in that evidence (see T2, pp181 - 182).
On 19 and 20 September 2013, the defendant gave the following relevant evidence on the identity question.
During his examination in chief by Mr Brezniak, the following relevant exchanges occurred:
(T2, p46, LL31 - 37):
Q. Did you cut the trees down?
A. No, I definitely did not cut the trees down.
Q. Did you order, request, instruct, arrange for those trees, the swamp mahogany trees, listen to the question, on the adjoining property to be removed?
A. No, I definitely did not do any of the things.
(T2, p59, LL37 - 41)
... I wasn't there when the trees were removed. I did not arrange for anyone to cut those trees or order it. I was doing to the best of my ability to follow council's instructions and Papadeas's agreement, and if I was to say or assume who did it, I would be - not be in just to any human that I would blame, so I can't - I can't blame anyone. ...
When cross-examined by Mr Howard, regarding discussions with Miller on, or soon after, 14 November 2011, the defendant gave the following evidence (T2, p65, LL46 - 50):
I asked him, did you remove the trees or order anyone on site to remove the trees, he said, "no". Then. After he said, "no", I told him, "who moved the trees?". He said, that when he got there this morning, he doesn't remember seeing, that morning, he doesn't remember seeing any trees. And - and he - he only cut the trees on my side, like I've ordered him, as per approved.
Towards the end of his cross-examination, the defendant said (T2, p174, L14):
... no one has ever asked me from council who cut [our] trees on 491.
Subsequent cross-examination revived the suggestion that the defendant thought Maria "removed the trees". The defendant said in answer to Mr Howard (at T2, p177, LL20 - 21 and 33 - 37):
... she says that she was there when the trees got cut so I don't know. Is that her admitting that she caused the trees to go without approval?
...
In my opinion I think she is the one that was the cause for the trees to cut. If she was there like she said at the time the trees were getting cut. That would be my opinion. If I can believe her that she was there that when the trees got cut she saw them cut and she let it happen then, yes, my opinion will be that she's the one that caused the trees to get cut.
Miller (T2, pp24 - 43) was on-site at No 491 on the morning of 14 November 2011, and met a crew from a tree lopping company, which he could not identify to the Court, when it attended the development site, and proceeded to cut down the trees on 491. Such works were covered by the Development consent for the Kara-Ali project ("DC").
Miller conceded (T2, p35) that he did not have access to his site diary when he prepared his evidence, and (T2, p36) that he lacked an independent recollection of events and times, but he denied (1) arranging to have the subject trees on No 493 removed at any time, (2) that the defendant ever asked him to remove them or arrange their removal, and (3) seeing anyone cut them down. He saw the lopping crew working only on No 491, and could not be certain when the trees on No 493 disappeared.
Council appears to have explored this question, at least with Maria, quite thoroughly (Exhibits D16 and D17). Council's "preliminary legal advice" (as at 24 May 2012) was that "these details are very important [as] ... without them any conversation/instructions may simply be defined as hearsay" (Exhibit D18).
Maria completed the Council's usual interview form (Exhibit P10) for Bourke, who testified that he had first seen the neighbours' agreement (Exhibit P12) between 30 November and 5 December 2011, and that, although the defendant was co-operative with his investigation, he would not complete such a form (Exhibit P11). As at 24 May 2012, Maria was still enquiring about "the name of the tree lopping company whom Mr Kara-Ali hired to cut his trees and mine" (Exhibit D18).
In the result, the identity of the person or persons who actually removed the subject trees cannot be precisely determined.
[8]
G: Evidence Regarding The Trees Themselves, Their Removal, And Council's Investigation
I turn now to a chronological examination of the evidence relevant to the Kara-Ali project, its associated tree issues, including their removal, and the subsequent Council investigation.
[9]
Council and the trees
An internal council report of 31 March 2010 (Meredith pp25 - 27), in regard to the Prowse/Kara-Ali DA of 4 December 2009 ([47] above), noted (at p26):
Tree Issues
The site inspection revealed the presence of numerous semi-established trees both within the rear yard of the subject site as well as on adjoining properties, close to common boundaries, that may be impacted to varying degrees by this proposal.
They comprise firstly, beyond the southern site boundary, within the rear yard of 493 Bunnerong Road, between this neighbouring two storey dwelling and the existing garage, a row of four (4) Eucalyptus Robusta (Swamp Mahogany's), whose trunks are setback a distance of approximately 700-800mm off the existing timber fence, and are all between 6-8 metres in height.
All four of these neighbouring trees appeared in poor health and condition due to the presence of deadwood, sucker growth and past failures throughout their canopies, but are still covered by the provisions of Council's Tree Preservation Order, and importantly, as they are located on an adjoining property, both Council and the applicant have a common law responsibility to ensure they remain unaffected by this development.
However, this would not be possible based on the submitted plans, as the excavated basement is shown as extending across the full width of the site, right onto the common boundary, immediately adjacent their trunks, which would cause 35-50% of their entire canopies and root plates to be completely removed.
As their health and condition is already compromised, proceeding with works as shown would only place them under further stress, initially affecting their health and appearance, but also making them unstable, which would pose serious safety risks to person and property from part of full failure, and would ultimately result in their death, which is an unacceptable outcome to Council.
That report noted that two options would "need to be investigated" (pp26-7):
OPTION 1: The applicant will need to approach the neighbour/tree owner at 493 Bunnerong Rd, and come to an arrangement where these neighbours submit a separate Tree Application to Council (independent of this DA) seeking permission to remove the row of these four neighbouring Gum trees, which if approved, would all need to be physically removed from that site, prior to the commencement of any site works within the subject property;
ALTERNATIVELY;
OPTION 2: If agreement is not reached as described above, or, if Council's independent officer refuses their removal, the applicant will need to re-design the southern wall of the excavated basement to provide a minimum setback of 2.5 metres off this common boundary, adjacent their trunks, with the area between the basement wall and boundary to remain as undisturbed deep soil. Further, the applicant will need to confirm that a construction method which does not require any further works, excavation, shoring or similar beyond the specified setback will be used for this component, such as contiguous bored piers, sheet piling or similar.
On 1 April 2010, Council's Executive Planner, Frank Ko, advised Prowse (Maria p2) that the four relevant trees appeared to be "in poor health and condition", but were "still covered by" the TPO, such that Council and the DA applicant shared "a common law responsibility to ensure they remain unaffected by this development".
[10]
The defendant negotiates with the neighbours about getting rid of their trees
On 5 April 2010, the defendant told George (Maria p1) that he had advice from his architect that the arborist recommended removal of the trees on 493. They were said to be "old", and to pose a potential danger to inhabitants. On 13 April 2010, the defendant sent the options report ([73] above) to Maria, saying (Maria p2), in the context of the development possibilities of 491 and 493:
"... Whichever way we go about these sites the trees would need to go."
He then offered to share the cost, if the trees were cut "for the purpose of developing".
On 16 April 2010, Maria (p5) advised the defendant that she did not "like the concept of cutting trees", and that "cutting the trees now is of absolute (sic) no benefit to us". In the case of another development, she and her husband had "gone out [of their] way to save the trees, but I understand sometimes it can not be avoided".
The defendant wrote to George, on 22 April 2010, saying (Maria, p6):
"The trees on your property are sick as per the council arborist report and they are dangerous to my property and to yours and to humans around it. Please consider the human risk and property risk it will cause. I will be forwarding this to the relevant authorities as my concerns are great for my safety."
George responded quickly (p7), saying:
"There will be NO trees touched on my surgery property."
Early the next morning, 23 April 2010, George wrote to the defendant again (pp8 - 9):
"The trees on my property are in reasonable health - in fact they are happy teenagers - and the 10-14 metre ... canopy they provide is an amenity that I choose to retain.
I have spoken to council representatives, and they assure me that the decision is mine to make - and that I am under no obligation ...
I am very keen to preserve and retain my trees."
In reply, the defendant asked George (p9) to:
"... also involve a tree specialist to remove your trees' roots of my site asap. Otherwise I will be doing the work all in accordance to standards and then forward the bill to you."
On 23 April 2010 (p10), Maria reminded the defendant that "[n]o one is allowed to damage or cut the trees, without the prior approval of the PTO (sic)".
Around that time there was an escalation in hostile exchanges between Maria and the defendant (see pp10 - 11).
The defendant then offered, on 2 May 2010 (p12), to remove the trees on the boundary, at his own cost, and to plant replacement trees, in accordance with the landscape plan, as well as paying $5000 compensation for any inconvenience.
Maria emailed the defendant on 3 May 2010 (Exhibit D3), saying (in part):
"This issue is not about money. I have not even related your offer to George. Trust me, it would do more harm than good.
Unfortunately the situation was inflamed by the recent emails between you and George.
I am trying to come up with an option to assist you and eliminate George's concerns, which are about his amenties (sic) at the surgery.
The bst (sic) option is to relocate the surgery to other premises and vacate 493 for development.
About a month ago, we made an offer to buy a property in Matraville to relocate the surgery. The owner was not interested in selling. To assist you (as promised) I approached him last week, to rent the property to us on 3+3 lease and he has agreed.
We have to make building modification, DA to the council, and cost the relocation. This would leave 493 Bunnerong able to be developed.
...
... I am convincing George, that relocate (sic) the surgery and selling 493 Bunnerong Road is a good option for us."
On 14 July 2010, the Papadeases objected to the Kara-Ali DA for No 491 (Meredith 2 November 2012, pp28 - 9). They claimed that the proponent had offered to discuss amalgamation of their respective lands, after they "remove our trees from the back of our property as they are diseased and are a hazard to inhabitants of both properties". They were advised by Council officers that there was nothing they could do to stop Kara-Ali cutting the roots of the trees during the excavation of No 491.
In August 2010, the defendant sent to Frank Ko at least some of the correspondence between Maria and himself regarding the trees.
[11]
Council approves the defendant's building project and the PRUNING of the trees
On 7 September 2010, an internal Council report on the defendant's amended application regarding No 491, noted the following (Meredith p32):
In Council's previous Issues Report dated 31 March 2010, the applicant was advised that a major constraint to this development existed beyond the southern site boundary, within the rear yard of 493 Bunnerong Road, between the neighbouring two storey dwelling and their free standing garage, as there is a row of four (4) Eucalyptus robusta (Swamp Mahogany's), whose trunks are setback a distance of only 450-800mm off the existing timber fence, and are all around 6-8 metres in height.
While endemic species which benefit local fauna, all four appeared only in fair health and condition due to the presence of deadwood, sucker growth and past failures throughout their canopies, but as they are covered by the provisions of Council's Tree Preservation Order (TPO), and even more importantly, are located on an adjoining property, both Council and the applicant have a common law responsibility to ensure they remain unaffected by such a development.
However, this would not have been physically possible based on the original plans as the southern side of the building, from the basement level right up to the roof, would have been constructed right on the southern site boundary (common with no.493), resulting in major excavations and works being performed less than 1 metre from their trunks, which would have a direct and negative impact both above and below ground, as well as creating future maintenance and safety issues.
Despite the applicant approaching the neighbour/tree owner at no.493, seeking agreement to jointly apply to Council for removal of these trees, this has not been forthcoming; so the only option left for the applicant to ensure their preservation is to amend the plans to show all physical parts of the development being setback a minimum radius of 2.5 metres off this common boundary, adjacent their trunks, with the area between the basement wall and boundary needing to remain as undisturbed deep soil.
That report contemplated (draft condition 63 on Meredith p48), the physical removal of the subject trees, subject to the consent of the owner of No 493.
An arboricultural impact assessment report, prepared by Danny Draper of "Urban Tree Management", and dated 20 September 2010, was submitted to Council in support of the DA (Meredith pp51 - 89).
The carrying out of the Kara-Ali project would require crown pruning of the trees, but the Draper report did not specify that any of them should be removed.
Prowse advised Council, on 20 September 2010 (Meredith p50), when submitting Draper's report, that the DA applicant would prefer to retain the trees, in view of the neighbours' attitude to their removal, and so avoid the proposed deferred commencement condition. The Draper report (Meredith p53) rated the four trees as in "fair condition and specified the details of desirable pruning". It noted:
... The trees form a linear stand located approximately 1 m from the side and 8 m from the rear boundaries, respectively. The proposed basement has been setback 2.5 m from the side boundary to provide a sufficient soil volume for the trees to remain viable and stable. The proposed development is setback 9 m from the rear boundary where existing trees on the site are to be retained, but will not be discussed further by this report. The subject trees are to be pruned to the side boundary for clearance from over the site. This is to provide access to construct the walls of the development to the boundary, canter levered over the seatback area. The pruning will require the trees to be selectively pruned removing between 15-30% of the crown. The trees spaced 2.0-3.4 m apart are upright and generally narrow, columnar in form and will not be misshapen by the pruning or adversely impacted in the long term.
The proposed building works will provide a minor encroachment into the growing environment below ground of the retained trees as per AS4970 and these trees are sufficiently robust to sustain the impact without adverse consequences allowing for further root growth in other directions including hand excavation and protection of structural roots. Where the major encroachment is to be undertaken root protection as demolition and excavations must be supervised and certified by the Project Arborist (Urban Tree Management) in accordance with AS4970 (2009).
Draper annexed a survey showing the location of the four trees close to the 491/493 boundary (Meredith p87).
Council officers, including Ko, recommended to Council that consent be granted on a deferred commencement basis (Meredith p119), the relevant draft condition in that regard ("118" on p145), requiring that the applicant provide written consent from the owners of 493 for the removal of the trees, in order to accommodate the proposed development.
On 21 September 2010, the Council resolved to grant consent, but not on a deferred commencement basis (p178), and with the basement wall on the Papadeas side set back by 2.5m, towards the rear, and in the vicinity of the root systems of the subject trees (p143).
However, Council imposed condition 118, in its final form (pp261 - 262), which provided (some emphasis added):
Pruning of neighbours (sic) trees
118. The row of four Eucalyptus robutsa (Swamp Mahogany's) (sic) within the adjoining property to the south, 493 Bunnerong Road, running in an east-west arrangement, between the neighbours (sic) garage and dwelling, all close to the common boundary shall be pruned in accordance with the Arborist's Report prepared by Urban Tree Management dated 20 September 2010.
On 22 September 2010, three councillors proposed a Rescission Motion, which suggested different conditions, but the motion was lost on 12 October 2010 (p264), and notice of determination of consent, which included the final version of condition 118, was issued on 14 October 2010 (pp265 - 303).
The stamped amended DC plans are before the Court (Exhibit P7), and Drawing DA10 of them reflects a drawing of the setback as postulated in Appendix "H" of the Draper report (at Meredith p87).
The prosecutor describes the design outcome (subs par 1.25) as a "curious building form", and (T2, p85, L35) as an "undesirable complication", given that the ground floor slab and the above ground walls would remain flush up against the boundary.
Between the granting of consent and the making of an application for the necessary construction certificate, the defendant is alleged to have commissioned no plans which indicated how he would comply with executing the setback requirement. As the prosecutor put it (T3, p31, LL45 - 48), there is nothing before the Court by way of engineering or architectural detail consistent with any intention to build a building with the basement set back 2.5 metres.
Such plans as were tendered to the Court by the prosecutor (Exhibits P18 and P19), and upon which he cross-examined the defendant, showed a more conventional basement design - the two basement levels extended to the Papadeas boundary - and the defendant did not protest that he had in fact prepared compliant plans, nor did his counsel lead evidence of any plans having been prepared to effect the setback.
The defendant continued his efforts, right up to the "last minute", to persuade the Papadeases to agree to removal of the four trees protected by the Council-stipulated setback. He cannot be criticised for wanting them removed, nor for wanting it to occur when his loppers were next door.
[12]
The neighbours discuss removal of the trees, rather than mere pruning of them
On 14 February 2011, Maria emailed the defendant at 7.46am (Exhibit D27), saying she was "getting [a] quote for tree removal today. Hoping to give you email you need by tomorrow morning". Then, at 11.31am, she emailed him again (Maria p15), telling him that she would accept the offer of $5000, which had been made in May 2010.
On 21 February 2011, the defendant advised Maria that he would do the job at his own cost, "if you give me the letter soon" (Exhibit D27). He also offered to Maria (p16) that George's dental surgery could relocate into the Kara-Ali retail project. She replied (p17) that they would not be looking at developing 493 "for at least 12 months", and only then could they decide to relocate the surgery. She also noted that George was reluctant to consent to removal of the trees on their land without some payment.
On 22 February 2011, the defendant advised (p18) that it was not now necessary to pay $5000, because he had obtained his development approval. Maria replied (p19):
"Thats (sic) OK Diaa. When and if we need to remove trees, we will pay for it.
However, whatever you do on the boundary, it will be your responsibility not to have the trees fall on my building. I checked this with Randwick council when you altered your plans and they confirmed this.
All The best
Maria"
The defendant responded minutes later (p20):
"That's ok Maria. We will definitely deal with not affecting your house. Also please let us know if you have any construction work for us.
Regards,
Diaa"
The following exchange occurred by email on 15 March 2011 (pp21 - 22):
Maria (p21):
"Hello Diaa,
I am told you were approached to sell and you were not interested.
Are you not interested or haven't (sic) they offered you enough?
Thanks
Maria"
Defendant (p22):
Hi Maria,
To be honest I am close to getting cc and no longer interested in selling. By the way I have spoken to my old man and he talked me into paying you two thousand in addition to wearing the cost of removing the trees. If you are interested let me know soon before I finalize cc.
Regards,
Diaa"
On 18 March 2011, Maria emailed the defendant (p23), saying that "cutting trees will be OK", and that she "will ... finalise details so that you can move forward".
The defendant replied (p24): "Ok Maria. Please do."
There then appears, at least from the email chain in Maria's affidavit, to have been a period of 6 - 7 months (March to November 2011), during which there was no material contact between the neighbours, at least regarding the trees.
However, in that time, Council was notified, on 12 July 2011, that a PCA had been appointed (Ramanathan Shanmuganathan), a construction certificate ("CC") had been issued on that date (CC11/216), and building work was commencing. The stated value of the certified works was $1.8M (CC at Exhibit P17 and the relevant CC plans at Exhibit P19).
In October 2011, Maria (par 36) enquired of Council regarding what would happen if the works on 491 cut the roots of her trees.
[13]
Agreement reached on removal
On Friday 11 November 2011, after business hours (at 7.17pm), the defendant emailed Maria (p25), referring to "our phone conversation", and to the emails exchanged between May 2010 and March 2011 (pp25 - 27), and asking her to "confirm approval" for removal of the trees "for Monday".
On Saturday 12 November 2011, after discussions with the defendant, at his instigation, and possibly after some discussions with Council, Maria responded to the defendant (p28):
"I spoke to George and talked him into.
OK for you to cut trees at your cost, plus give us $2,000 cash.
Diaa, I dont want any hassles with George, so please, get the $2,000 cash to him before the trees are cut.
Also, dont you need forms signed by us for council to approve cutting the trees before you actually cut them?
Please make sure council requirements are satisfied. I dont want problems with council and fines.
We are going to plant new trees to secure some privacy when the units are built. So please make sure the tree loppers, remove the stumps/roots so that we can plant new trees along the fence without any problems.
Your demolition guys have not finished. So I dont know if the tree loppers are still turning up on Monday as you said. Just let me know when it is to happen.
..."
Maria (purportedly acting on behalf of herself and George) concluded an agreement with the defendant, and she reduced it to writing. She and the defendant signed and dated it on Sunday 13 November 2011 (see Maria p29, and Exhibit P12). George was not at the surgery on that day, and so did not sign as well, but Maria's evidence is that (1) she acts on his behalf, and (2) the defendant did not require George to sign it.
The substantive terms of the agreement (Exhibit P12) between the neighbours were (emphasis in the exhibit):
Diaa Karaali to pay George and Maria $2,000 cash and George and Maria Papadeas agree to sign the Application for Permit to Prune/remove Trees to be lodged by Diaa Karaali.
Further;
George and Maria Papadeas agree to:
* Allow Diaa Karaali to remove four (4) trees on 493 Bunnerong Road, to facilitate the construction of the approved development on 491 Bunnerong Road.
Diaa Karaali agrees to:
* Cut and remove all four (4) trees, including root system, and remove all tree loping, trunks, roots and debris, from 493 Bunnerong Road, Matraville at own expense.
* Level soil where trees are to be removed to allow George and Maria Papadeas to plant new trees for shade and privacy.
* Access to the trees to be made from 491 Bunnerong Road property.
* Make good and replace timber fence as soon as the trees are removed.
* Apply and obtain approval from Randwick Council to remove the trees and pay all council fees required.
* Tree removal to be carried out by licensed Tree Lopper with adequate insurance in case of any damage to the building at 493 Bunnerong Road during the procedure.
* Every care to be taken not to damage the building at 493 Bunnerong Road Matraville.
* Advise George and Maria Papadeas the scheduled date of the tree removal.
Maria deposes (par 43) that she gave the defendant the signed agreement (Exhibit P12), as well as a formal "owner's consent" completed on the relevant application form obtained from Council.
The defendant signed the agreement, ostensibly as "Owner of 491 ...", even though he is not. In her formal statement to Bourke in January 2012 (Exhibit P10), Maria again nominated him as the owner of 491.
[14]
Actual removal
There is speculation in some of the evidence that the subject trees may have been removed sometime over the weekend 12 - 13 November.
Indeed, in her formal statement to Council (pp31 - 32, and Exhibit P10), Maria nominated Sunday 13 November as the day.
However, it seems clear, from all the evidence, including Maria's, that they were removed on the morning of Monday 14 November 2011.
[15]
The key relevant events of 14 November 2011
There are before the Court various accounts of what occurred on Monday 14 November 2011, but one thing the evidence establishes is that the Council received on that date a copy of the agreement discussed above.
However, Maria says not only that she did not give it to Council, but also that the defendant told her that neither did he.
On the other hand, the defendant says (T2, p49, LL33 - 40) that he did lodge the agreement, but not the owner's consent form, at Council's counter, personally, at about 10.30 - 11am in the morning on 14 November 2011.
The defendant said, in chief, that he went about his normal business at the beginning of that day, but produced no corroboration to support his case that he probably visited other sites, but not his own, before he had a telephone conversation with Meredith at about 9.30 or 10am on that day, in which Meredith (T2, p48, LL38 - 44) told him that:
"... yes, if the neighbour agrees, if then we can cut those trees and he said that if I come and lodge an agreement, because I told him that I have an agreement, already, by the next door neighbour, he said, well, if I come and lodge it at the council counter, as soon as he sees it, he will call Mrs Maria Papadeas, and tell her that it's okay to cut the trees and I left him, with the agreement anyway, that was the talk."
Indeed, the evidence indicates that Meredith and the defendant had several telephone contact attempts, if not actual conversations, during that morning (see telephone records in Exhibit D2). Meredith's account of the events of that day commences with pars 23 and 24 of his affidavit, but, on 14 December 2011 (par 30), he prepared, for the purposes of Council's investigation, a file note regarding [his] dealings with the defendant (p326, separately before the Court as Exhibit P2). That note led to further clarification (p327) of some details.
In cross-examination, the defendant stressed (at T2, p148) that he initiated the call to Meredith at 9am on Monday 14 November 2011 (L13) because he "really wasn't aware what the procedure was formally" (L23). He then had this exchange with Mr Howard (T2, p149, LL22 - 32):
Q. The reason that you rang Mr Meredith on Monday 14 November was because you wanted to have your tree loppers cut those trees down while they were there on that day?
A. If council approves that would have been the option. Maria was there and she was waiting for the council's call and, yes, that would have been the option.
Q. Didn't you tell Mr Meredith about the nature of the agreement that you'd entered into with the owner?
A. On the phone though because the whole idea was that I will straightaway head to the council and lodge the agreement.
In the light of that evidence, I put a few questions to the defendant (T2, p151, L39 - p152, L2):
Q. Mr Kara Ali, in your email of 11 November sent at 7.17pm to Mrs Papadeas, which appears to this is at page 25 of the documents, I don't think you've got it there at the moment
A. I'll probably remember it.
Q. Yes. Which appears in the next date underneath in the chain is 18 March and there's a question mark about what may have happened between March and November, but in that email you used the expression "Please confirm approval for Monday."
A. Yes.
Q. I just want to ask you a simple question. What did you mean by the word "approval"? Her approval, council approval, both?
A. I could have meant both.
After the defendant took the agreement to Council, he drove to the site. The journey from the Council's offices to the site took "about 20 minutes" (T2, p158, L20). The defendant says that he left the Council "around 11" (T2, p152, LL39 - 44), and, while he was on his way "straight" to the site (T2, p158, L15), he had a further conversation with Meredith, in which Meredith told him that condition 118 meant that he was "not allowed to touch the trees" (T2, p158, LL31 - 49). In chief he said of that conversation (T2, p49, LL15 - 25):
"Basically straight after that on the way back to or on the way to site now because I lodged them and now I was driving to the site to 491 Bunnerong Road, Matraville. On the way in the car I obviously I have Bluetooth, I made the call to the Mr Meredith to confirm with him that I actually put the agreement over the counter because he told me that as soon as I put that agreement to call him so that he can look at it and I did call him and I told him "Did you get that agreement" and he said that was on the way back to the site or on the way to site and then and he said he looked at the agreement but unfortunately he has looked further into my DA conditions and he said condition 118 does not allow me to cut the trees without an application to the council that is approved by council and I said okay."
Maria's evidence (pars 44 - 46) would indicate that the trees were cut down at around or shortly after 9.30am. The telephone records (p55) indicate that Meredith first reached the defendant at about 9.45am, and (p56) had further contact at 10.59am and 11.25am. Meredith suggests (1 August 2013, par 4) that in the 10.59am conversation he heard chainsaw noise in the background, consistent with the defendant being at the subject site at the time.
When the defendant later arrived at the site - he insists ("100%" sure - T2, p141, L50, but c.f. T1, p302), for the first time that day, and not "back on site", as he sometimes said in his evidence, and as Meredith alleged - he found (T2, p50, LL37 - 41) "just the clear land ... on 493."
In respect of honouring the terms of the neighbours' agreement, the defendant said (T2, p59, L27 - p60, L28):
"... I tried at my best to adhere to what we agreed on ... obviously there was no approval on the trees, but the agreement says that I should seek approval; but I did everything I can to follow instructions by council and the agreement. ..."
The defendant was closely cross-examined regarding the events of 14 November. The following exchanges occurred (at T2, p64, L11 to p65, L50):
Q. You say you'd been to your site prior to attending the council?
A. No.
Q. You had not?
A. No, I was on my way when I received the second call from Mr Meredith, I was because I live in Condell Park, I just have left Condell Park and on the way to the site when I got the call. So I went straight to council after that call.
...
Q. The trees were still there on the Sunday?
A. I did not look at the trees, I came through her front entry and signed the agreement.
...
A. Well, when I went to site [on 14th] I didn't observe the trees, and I didn't talk to Chris Miller that day, I arrived to site, I didn't observe the trees, and I made the call straight to the council, and I was busy with calling council and then went back home.
...
Q. Are you saying you didn't speak to your site foreman?
A. No, I'm not saying I didn't talk to my site foreman about these trees, I said that I did but not straight away.
Q. Did you talk to him that day?
A. Or that day, I can't remember whether it was that day or the next day, but definitely spoke to him after that even about the trees.
The defendant was taken, in cross-examination, through his dealings with Maria during 2011, and relevantly testified (at T2, p94, L25 to p95, L44):
... she approached me about paying her $5,000 after I got approval. Before I got approval, it was a no go zone. It was a big issue and all of a sudden when I got approval both the Papadeas approached me, now became lots of time and different, and they were now approaching me to pay them $5,000 to move the trees. So, to me after I got approval, like I said yesterday, the trees were no longer a big concern. The whole issue was not a big concern. I'm not saying that I did not ever want to move the trees after approval, but there are times when I didn't care after I got approval as well.
...
... she really wanted $5,000. She wanted the trees removed. She wanted to use the place for car parks ...
... Yes, definitely, she wanted the trees to be removed.
...
Q. Why would the granting of approval prompt her to want to get rid of the trees?
A. Because now she was no longer able to stop me from developing the site.
In respect of his "difficult and lengthy negotiation" with Maria to get the trees removed, he later commented (T2, p176, LL26 - 33):
"... There are times where she thought she can stop my development ... and as soon as I got approved, she changed. She tried to get money."
When the defendant was further cross-examined about the events of 14 November 2011, the following evidence was given (at T2, pp109 - 112):
Q. So it stands to reason, doesn't it, that you wanted your tree loppers to cut down the Papadeas's trees, on the following Monday, 14 November 2011?
A. Yes, that was, that was the idea, if everything is right, everything's approved, correct. If everything's approved, I wanted to cut the trees.
Q. What do you mean, if everything's approved, approved by Mrs Papadeas, or approved by the council, or what?
A. It was, it was everything, Papadeas, and council.
Q. When you said, "please confirm approval for Monday"?
A. Yes.
Q. You knew you didn't have the council consent, didn't you?
A. I to be honest, I didn't know what we had, in particular, at that Friday. I didn't know what she had. I am going off a email here, that says, "Please confirm your approval, for Monday", or confirm approval for Monday. So I everything was still under discussion, so. I am asking her exactly what I'm asking her, please confirm approval and that what was going in my head.
Q. But you sent that email after working hours, certainly after council working hours, on Friday 11 November 2011, didn't you?
A. Yes.
Q. It was your intention, if Mrs Papadeas confirmed approval, that your tree loppers would cut those trees down on Monday 14 November, that's right, isn't it?
A. Well, if she had approval, and then yes, that was a possibility that my tree loppers will cut them.
Q. What I'm suggesting to you
A. It was left open, yes, for her. So I'm asking her approval, confirm her approval.
Q. But you didn't intend to get council approval, did you?
A. At that particular time, I didn't know who had, if she had council approval. I didn't necessarily lock that idea in my head, but that this does not go to say that I intended to do anything without anyone's approval. So I obviously always in my head, since day one wanted to do everything in accordance with council requirements and her agreement, and I was still thinking that way but I do not know whether she had approval necessarily in that email. I'm talking to her, obviously, I am leaving things open to what she gives back as feedback.
Q. You're not suggesting that she told you that she had approval to cut the trees down, are you, approval from the council?
A. They could have, they could have.
Q. You're not seriously suggesting that, are you, Mr Kara Ali?
A. I'm seriously suggesting at that time, not now. At that time, she could have had approval from council. And now I know she doesn't, because it appears that from the evidence, council's saying she didn't, but back then, I wasn't aware of what she had necessarily.
Q. When do you say that you found out that she didn't have approval to cut the trees down?
A. Definitely when we signed the agreement on a Sunday, I then realised that we didn't have necessarily the approval.
...
Q. Just pausing there if I may, it was clear to both you and Mrs Papadeas, as evident by this communication, that you were going to cut the trees down, not her?
A. At that time, yes.
...
Q. What I'm suggesting to you is where she said, "Okay for you to cut trees at your cost plus give us $2,000 cash", it was clear to both of you that you were going to cut the trees down, not her?
A. Yeah, okay.
Q. You agree with that?
A. Yep, if there was approval.
Q. The reason that, in your mind, you were going to cut the trees down, not her, was because you had tree loppers coming on the Monday?
A. Correct.
Q. It would make all the sense in the world, in terms of the commercial sense and the logistics of your development, that while the tree loppers were lopping trees on your property, they could lop the trees on the Papadeas's property at the same time?
A. Absolutely, that's a possibility, yes.
Q. Then Mrs Papadeas said, "I don't want any hassles with George, so please get the $2,000 cash to him before the trees are cut"?
A. Yes, I do see that.
Q. You did that, didn't you?
A. Yes, from memory I paid the 2,000.
HIS HONOUR
Q. On that day?
A. Not on that day, from
...
Q. From the evidence yesterday, at page 59 of the evidence, you said in answer, "Did you pay her any money?" answer, "Yes. Can I correct. When I say I'd adhere to the agreement", that's a big question, so you went off that point, but the $2,000 was supposed to be paid before the loppers went into the land. Did you pay the money on the Saturday or the Sunday?
A. To be honest, I remember paying her, definitely a thousand dollars, that's, I'm sure of, but as to exactly, if it was paid on a Sunday or Saturday, I can't confirm, but more than likely I paid her a thousand dollars, and it could be 2,000 on a Sunday. I am not I can't go off my memory and remember whether I paid the full amount, and the exact time, but more than likely I paid her on the Sunday, when the on the on the day she gave me the agreements. More than likely.
...
HOWARD
...
Q. So you knew that it was up to you to get approval from the council, wasn't it?
A. After we signed that agreement, that's what the agreement said and yes, that was now that was a question for me to ask council.
Q. So it was up to you to get approval, before the trees were lopped, approval from the council from the Saturday, it was clear, wasn't it?
A. Depending on the procedure of council, of how you get that approval, it was up to me to make sure there's an approval. That's what I understood, that it was up to me not to cut the trees without an approval, but whether council would accept me seeking that approval, is a question for the council, not a question for me. I followed procedures.
The cross-examination then returned to the question of approval (at T2, pp137 - 145):
Q. You agree that you were aware at that time, that is no 13 November 2011, that it was your obligation to apply for and obtain approval from Randwick Council to remove the trees and pay all council fees required?
A. Yes, I was aware that I was to do what is legally according to council my role in doing this and Maria to do what she is to do as well to satisfy council to get that approval, yes, aware of that, that we need council's approval.
Q. There was no obligation in respect of approval at all under this agreement in respect of the Papadeas's except to sign the owner's consent on the application form; that's right, isn't it?
A. Like I said the owner's consent at that particular time wasn't raised at that particular time so I would not be able to confirm that I was thinking owner's consent. I was thinking I am to contact council in the morning because it was a Sunday and get approval. Understand what that approval process and do what they tell me to do.
...
Q. So you were well aware, weren't you, as at 13 November, that it was your obligation to apply for and obtain the approval from Randwick Council to remove the trees and pay all council fees required?
A. I was aware that it's my obligation within my ability to and in accordance to council.
Q. There was no impediment to you putting that application to the council once the Papadeas's signed their owner's consent; that's right, isn't it?
A. Correct. If the owner's consent was signed by the Papadeas's and council said that there is such a consent that we needed then I can give it to them, yes.
...
... when I drove to the Papadeas's property I didn't know what was in the agreement, right? That's a fact. I didn't know because I've never seen that agreement. So when I went there I saw that. She gave it to me. I signed it. In good faith I definitely gave her 1,000, that's what I can remember and then I was in my understanding I was to call council tomorrow morning, Monday, and do exactly what they ask and what I understood that Maria Papadeas will cooperate with me to help me do whatever council asks for.
...
To be honest I think we were both not clear as to what council is going to exactly require at that particular time but like I said this agreement was drafted by Maria. I got it last Sunday late Sunday when I got there and I signed it and we both showed good faith and she even said for example, I'm just giving an example of the state of mind we were in, she crossed out George Papadeas and she said he's not here, he's not going to sign I'm just going to cross that out and I said in the end whatever council ask for if you know, for example, if they ask that George signs then I'm going to have to come back and tell you that they asked for it and this was the general agreement that me and her were both going to cooperate to keep council happy. She's not going to put obstacles in my way, I'm not going to put and I honestly believed her ...
...
Q. You didn't lodge with the council, did you, an application to prune, remove trees, did you?
A. No.
Q. Even though I suggest to you you had that form with Mrs Papadeas' signature and the owner's consent section?
A. No, I did not have that form. Because if I had it anyway, if you want me to elaborate, I will, but no I did not.
Q. Why didn't you lodge an application with the council to remove the trees that morning?
...
A. ... why would I do anything other than what he directs me to do?
...
Yeah, but like I said about the agreement, it was we were in a certain frame of mind that we want to get council's approval and I wasn't aware what the logistics and the procedures exactly are and that's all I had with me and when David Meredith answered me while I was in my car and he told me put the neighbours agreement and then I will call Maria, that was the direction, and for me this had nothing for me to worry about because I was only following Mr Meredith's directions. Why would I do other than that, and why would I not do exactly that. That's how I were thinking, you might think that I should have done something else, but that's what I were thinking at least.
...
A. And I just said, absolutely I want to honour the agreement. I don't want to do anything
Q. What, until the next day, when you no longer decided to follow what you'd perform the obligations that were listed in the agreement?
A. I they I didn't I wasn't at any time thinking I don't want to honour that agreement. I was just following procedures of what I thought was appropriate, and what Maria left open to me and I was doing that, you know, there's I can only do what I'm thinking at that time, as a human, that is going to get me to the right point, which is to get council's approval. Like we agreed like we agreed in the agreement with Maria Papadeas, that we will do, both of us, what the procedure set out by council, in order to achieve their approval and the very fact that I called Monday morning, I think David Meredith, just shows me that I was exactly doing that.
...
Q. ... you were intending not to lodge an application with the council to remove the trees, because it didn't suit you to wait. That's the reality, isn't it?
A. Not that, this is not true in any way. Because I was only trying to satisfy council and Maria, so why would I think it doesn't suit me to get their approval. I would never think something like that.
...
Q. Did you intend, at any stage, to lodge an application with the council to remove the four trees on the Papadeas property?
A. I would intend to do exactly what the council tells me to do and whatever the procedure was laid out by council. I approached council for their requirements, and if council told me, put in the form, I would have put in the form. I would not have left an agreement without a form, if David Meredith told me, put in a form.
...
... we both intend to do whatever council asks us to do. And I would not run away from anything I can do.
...
... it will be my job to get the approval and to me that meant, I will do whatever council allows me to do, to get the approval and to me, I really understood from Mrs Papadeas that she would help me all she can with what council ask for, to do what they want.
Mr Howard closely questioned the defendant as to why he was not "clear" about his obligations under condition 118 (T2, p159, LL21 - 42):
Q. ... It was clear to you when you read the DA and read condition 118 that you couldn't cut the four trees down under the DA process?
A. It was clear to me when I first got approved and in some days or weeks or whatever it was time period that I was it was clear to me. At some stage it was no longer clear to me that's why I asked Mr Meredith that question in the morning over the phone, otherwise I would not have left that message and I would not have spoken to him on the phone.
Q. Your understanding concerning the condition didn't change after you read the condition 118, did it?
A. Sorry, can you please clarify the question.
Q. I'll put it another way. You just said that it was clear to you initially that condition 118 did not permit you to cut down the trees, only permitted pruning?
A. Absolutely right.
Q. When do you say there became some uncertainty about that in your mind?
A. There became some uncertainty pretty much as soon as Maria first emailed me and said that she is okay with cutting the trees. That email would have automatically in my mind made me now looking for the procedural and legal ways to move on.
After he realised the trees "were gone", he spoke, on that day, to Meredith and Ko, but not to his tree contractor, nor to Maria (T2, pp163 - 164).
The following exchanges occurred, during the cross-examination, in regard to the discussions with Meredith on that day (T2, p167, LL3 - 42):
Q. Why would Mr Meredith have any role in ringing Mrs Papadeas if you'd reached an agreement with Mrs Papadeas that she was allowing you to remove the trees?
A. I don't know. Maybe he wanted to make sure that she's happy and he explained something to her. I really don't know. I don't know. If that's the question I don't know.
...
Q. I'm suggesting to you that he said to you the conditions of consent do not provide for the removal of the tree. There is no application for the removal of the tree in the council's records. You need approval even if you have the consent of the owner of the trees. You will be in breach of the development consent if you remove the trees without approval.
A. I completely deny that and I can completely assure you that that wasn't the case because I went and submitted the agreement right after that talk. So why would I do that? I am 100% sure that he didn't say that.
Finally, in re-examination (T2, p184, LL20 - 35), the defendant confirmed that he had accepted Council's "Option 2" ([73] above), on the recommendation of his architect, because Maria would not agree, before his DA was approved, to remove the trees.
[16]
Council's investigations and relevant post-removal events
Bourke commenced Council's investigation shortly after 14 November 2011 (Maria says, in par 51, "a few days later"). Certainly, Meredith personally observed, on 16 November, that the trees had been removed, his photograph of that date shows no trees, and he reported that observation to Bourke. Maria says that she was surprised to see, on 9 January 2012, that Bourke had a copy of the agreement she had signed with the defendant.
Meredith noted, on 29 November 2011, in an email to Bourke (Meredith p304), that, despite the terms of the neighbours' agreement, there was:
"... no record in the system that the owner of the trees at 493 even applied to Council through the TPO.
While it appears obvious that the developer has removed them, unfortunately for the owner at 493, she's the one at fault as they were on her property."
On 2 December 2011, the defendant lodged a s 96 modification application (pp305 - 6), seeking, in part, for the "basement to be extended to neighbour's boundary (agreed to remove trees) ... (letter already submitted to Council)". In his accompanying "additional" Statement of Environmental Effects (pp307 and 322), the defendant referred to the "formal" agreement of the neighbour "(already submitted to Council)", and noted that the trees had been removed.
On 5 December 2011, George emailed Bourke (Meredith p324), promising to provide a statement from Maria and himself within a few days. Then, on 8 December 2011, Maria emailed her "statement" to Bourke, copy to George (Maria p33, and Meredith p323), in which she said:
"I did contact Mr Frank Kho (sic) at Randwick council, who confirmed that we were not obliged to agree to have the trees removed, however, that Mr Karaali, will be allowed to proceed with his development and as our trees overhang over his property, he can and will removed (sic) the canopy of the trees and further, whether unintentionally or maliciously, the roots of the trees can and will be compromised.
We did not want to risk the trees dying and falling on either property or more importantly hurting people.
In view of this and as it appeared to us that the trees will die anyway once the development is underway, and as the development was approved, we reluctantly agreed to have the trees removed."
On 12 December 2011, Bourke asked Meredith (Meredith p327):
(1) to "check the statements made in [Maria's] email - particularly the claim that Council had no objection to the trees being removed?"; and
(2) to check with Ko about the comments she alleged he made.
Meredith replied (p327):
"I believe the developer approached the owners of no.493 in the earlier stages seeking agreement to remove the trees, but as they weren't agreeable to this, and were not obliged to be, our conditions only allowed them to selectively prune the trees where they overhung the common boundary, and also required that the basement wall be setback to maintain an area of deep soil.
I asked Frank Ko about those statements; he maintains he never said that the developer would be allowed to intentionally damage their trees.
As the trees are no longer there, the developer is now seeking to amend the scheme by pushing the basement wall right up to the boundary, with the covering letter in TRIM: D01397073.
I asked him over the phone earlier in the week where he got the idea he had consent to remove the trees as there was nothing in the DA or in our system that showed any sort of approval was sought or given. All he said was that he was 'confused about what he was allowed and not allowed to do'...????"
On 14 December 2011, Meredith prepared a comprehensive file note of his dealings with the matter (p326, and Exhibit P2), in which (1) he noted that Maria's statement of 8 December had been received, and (2) he insisted that, in a conversation with the defendant, after the removal, regarding their dealings prior to the removal:
"... my advice to him was clear, and that if he had any misunderstandings or confusion about the DA and what he was allowed to do, that surely, any reasonable person would consult Council and adhere oto (sic) their advice before proceedings with such an illegal activity."
On 14 December 2011, the defendant, on behalf of DK Engineering, emailed Maria (Exhibit D14) saying:
The report we got at the time was to say that the trees are in fair condition and can be retained for the purpose of construction of the basement and do not necessary (sic) have to go. It was never to say that they are dead and need to go. At the time the council wanted them to go and all they wanted was a letter of approval from you. So our arborist report said the trees can stay if we do the setbacks that then got approved without needing to remove the trees. The recession (sic) motion said that the trees can go only if you agree and now they are gone.
I do not think that our arborist report is written within context of the removal like the council report said that they are in bad condition. So there is no need presenting it and it wont (sic) help you tomorrow.
Maria replied to that email, on 29 December 2011 (Exhibit D14), saying that, due to a lack of preparation, she had deferred a planned meeting with the Council, and may need George to be present. She said: "So far, I have advised council, verbally and in writing, what we have discusses (sic). I have not advised them of the two page agreement we made".
Serious issues arose, during the hearing, as a result of that reference to a "two page agreement". In particular, a question arose as to whether and how the string of emails printed on the back of "page 29", as it appears in her affidavit, and in Exhibit P12, being emails between Maria and the defendant in February/March 2011, could have formed part of the agreement of 13 November 2011.
In introducing (in par 43) the agreement which she was annexing to her affidavit, she referred only to "page 29" (singular). The email string "struck-through" on p30 replicates the first paragraph of the email at p17, and the full text of emails at pp21 - 23, of her affidavit. She could not explain its inclusion at p30, or how it came to bear Council's date stamp. Bourke testified that it was so stamped because it arrived at the Council when the agreement itself was received on 14 November 2011. Maria is "positive" that she did not prepare the substantive agreement on the back of any email printout (T1, pp391 - 392).
On 9 January 2012, Maria met Bourke, and completed and signed for him her "Property Owner's Statement" (pp31 - 32, and Exhibit P10). In it she accused the defendant of responsibility for the removal of the trees, she nominated 13 November 2011 as the removal date and "chainsaw" as the means. She estimated the heights of the trees as in the range 6 to 8m and the widths of their canopies in the range 2 to 4m: She specified that three were "7-8" and "3-4", and one was "6-7" and "2-3". She added these comments (p32):
"Architect of owner of 491 Bunnerong, forwarded an application form to us to sign a section to allow Mr Kara-Ali to apply to council to have trees removed - this was signed by us. I drafted an agreement between Mr Kara-Ali & myself, which we both signed - it specified that Mr Kara-Ali was to obtain council approval prior to cutting trees. On the day trees were cut, I heard noise in backyard, tree loppers had already cut my timber fence and one tree. I asked them to stop and check with Mr Kara-Ali that council has approved. They stopped, called Mr Kara-Ali on mobile and 15 min. later reported to me that they confirmed with him that council has approved, and proceeded with cutting the other 3 trees."
Maria emailed Bourke, on 11 January 2012, saying (Exhibit D17):
"I checked my work diary, the trees were cut on Monday 14th November, 2011."
Council noted in a internal memo, on 18 January 2012, regarding the s 96 modification the defendant sought (Meredith p330):
Council did not support the original submission as allowing the basement level to be constructed right up to the southern site boundary, as was shown, would have caused the death of a row of four, semi-mature Eucalyptus robusta (Swamp Mahogany's) growing in an east-west arrangement in the rear yard of no.493, against the common boundary, as half of their root systems and canopies would have been completely sheered off due to excavations being performed only 450-800mm to the north of their trunks.
In order to comply with Council's requirements for ensuring their preservation, the plans were subsequently amended to show the southern wall of the basement being setback a distance of 2.5m off the common boundary, for the section adjacent their trunks, with condition 118 of the DA allowing the minimal and selective pruning of some overhanging branches only, in accordance with the recommendations of an Arborist Report.
However, these trees were illegally removed on 14 November 2011, in direct breach of the conditions of [DC], and without any form of consent or approval being sought or obtained from Council, with the SEE detailing that as these trees no longer exist, the basement levels can now simply be built right up to the common boundary with no.493, as was originally proposed.
The defendant's s 96 modification application was approved on 19 January 2012 (pp331 - 337), and condition 118 was deleted.
On 8 February 2012, Maria sent a detailed general complaint (as in a complaint not related to trees, as trees are the concern of a separate council department - see T1, pp289 and 394) to the Council's General Manager (Exhibits D12 and D21). In it she again complained that the appointed certifier was unresponsive to her. The certifier had said that confidentiality precluded his discussing the defendant's affairs, and that, if she had issues with the defendant, she needed to see a solicitor, and take him to court. He "confirmed" that he had received a dilapidation report.
Nahlous attended No 491 Bunnerong Rd, on other Council business (fencing), on or about 10 February 2012, and took some photographs, which are exhibited to her affidavit. Excavation of No 491, very close to the building line on No 493, is shown in photographs 1 and 2, and that closeness can also be seen clearly in photographs 5 and 6. It would appear, from her answers to questions during cross-examination (see T1, pp214 - 217), that Nahlous "understood" (T1, p216, L19) that some excavation had occurred in November 2011, but she did not see it (L27). On the other hand, Meredith annexed to his July 2013 affidavit two photographs he took of excavation works, during his inspection on 22 February 2012.
On inspecting Council's file after visiting the site, Nahlous noticed that no dilapidation report had been received by Council in respect of No 493.
Maria emailed Bourke again, on 13 February 2012 (p34), complaining about the defendant, and expressing her view that the removal of the trees had compromised her safety and security, and that of her property.
On or about 14 February 2012, the defendant emailed an unsigned dilapidation report, dated 24 November 2011 (see Nahlous affidavit, Annexure B), indicating, as at that date, that excavation works had not commenced on the land (c.f. [158] above). The defendant had himself prepared that dilapidation report, and provided it to his company DK Engineering. (The Court is not satisfied of the completeness of the report in that annexure, and notes some confusion about dilapidation report(s) in the evidence (T1, pp398 - 403).
On 14 February 2012, Bourke made a detailed written report (Exhibit P16) to Council's Manager - Technical Services, in which he summarized much of the history I have recounted here, and recommended referral of the matter to lawyers for possible prosecution of the defendant. Bourke recorded these comments (pp3 and 4):
Mrs Papadeas assured me that the only reason she allowed the contractors to remove the four gum trees within the rear of her property was that she was assured that Mr Kara-ali had sought and obtained Council consent for their removal.
I am advised by Council's Landscape Development Officer that on 14 November 2011 Mr Kara-ali left a voice message on his office phone enquiring as to whether he could remove the row of four native Swamp Mahoganys from the neighbouring property at 493 Bunnerong Road.
When that officer contacted Mr Kara-ali later that same day he (Mr Kara-ali) stated he intended to proceed with the removal of the trees on the basis of the neighbour/tree owner signing an agreement and he referred to a rescission motion from Council which he claimed allowed their removal.
Council's Landscape Development Officer advised Mr Kara-ali that regardless of any agreement being reached between the two parties, the issued development consent definitely did not allow removal of these trees, and further, as Council's records showed that no formal approval had been sought nor given for their removal, he would be in direct breach of his conditions of development consent if he proceeded.
However, a follow up inspection undertaken on Wednesday 16 November 2011 revealed that all four trees had been physically removed from the site.
As the trees no longer existed, a s96 application was submitted to Council on 2 December 2011 seeking to relocate the basement right up to the boundary as originally proposed.
During a phone conversation David Meredith had with Mr Kara-ali on 13 December 2011, when asked to explain why, after being directly instructed not to proceed, he still removed the trees, he claimed he misunderstood what he was allowed to do and thought the rescission motion allowed their removal.
Despite Mr Kala-ali's assertion that he understood the signed agreement he had with the owners of the trees allowed him to remove them and that this was supported by the rescission motion passed by Council, this is not supported by the facts.
He was told on a number of occasions, both verbally and in writing, that he had to lodge an application with Council which was signed by the tree owners for consent to remove these trees and that his approved development consent did not allow the removal of those trees.
The rescission motion approved by Council's Planning Committee on 12 October 2012 makes no mention of the removal of these trees and actually stipulates that the trees can only be pruned and that any such pruning must be done in accordance with the arborist's report provided by Mr Kara-ali to Council.
...
I have spoken to Mr Kara-ali on several occasions requesting that he provide a written explanation as to why he removed these trees but he has not as yet provided any such response.
Early in the morning of 15 February 2012, Maria emailed the certifier, and Nahlous, copying both emails to the General Manager (Exhibit D11). Maria referred to an earlier incident in which the defendant allegedly screamed "obscenities" at her when she complained about "pushing his fence on my property and trespassing on my property".
On the afternoon of 15 February 2012, Maria again emailed Nahlous, with a copy to the General Manager. She referred to "this morning's incident", and advised that she had had her solicitor email to the defendant a letter regarding trespass and harassment. She expressed disappointment with Randwick Council's response to her complaints. Nahlous had referred her to the Buildings Professionals Board in respect of the activities of the certifier and his failure to respond to her. An earlier email exchange suggests also that Maria confronted three men on her property, and the police were called (Exhibits D7/D8/D10).
On 16 February 2012, Maria obtained a survey from Dunlop Thorpe and Co (Exhibit P5), to establish the line of her northern boundary. That survey indicated that the excavation of 491 and the temporary construction fencing both encroached on 493. On that day she also emailed the General Manager, who passed her email on to Nahlous, complaining of trespass by the "developer at 491", outside the normal specified working hours (Exhibit D9).
Nahlous agreed in her oral evidence that there had been some friction between the neighbours, and that the Council had received many complaints from Maria. One of the complaints that Nahlous heard was that the defendant had lied to the Local Court. Nahlous acknowledged receipt (Exhibit D5) of the survey, and of the fact that Maria had contacted police.
Maria also contacted the local State MP, Michael Daley, who made representations to Council about the matter, on her behalf, and the General Manager responded on 16 March 2012 (Exhibit D19). Council assured him it would be vigilant about any "breaches upon which it could act".
Many of Maria's complaints about the defendant's works at 491, but not including the removal of her trees, are set out in an email she addressed to the certifier, and copied to the General Manager, dated 19 March 2012 (Exhibit D6). The email concludes:
"more issues to follow."
On 17 April 2012, the certifier of the project issued a second CC (No 11/216A - Exhibit P13) which revised the cost figure to $2.2M (although the application form included in the exhibit notes the cost as "same as before" (but c.f. [48] and [111] above).
During May 2012, Bourke and Maria exchanged emails about his continuing quest to identify the contractor who cut the trees.
On 21 May 2012 (Exhibit D16), Bourke emailed Maria seeking "a name or company name of the contractor who removed the trees within your property". Maria said (Exhibit D18), early on 24 May 2012, "If you mean do I know the name of the tree lopping company whom Mr Karaali hired to cut his trees and mine, the answer is no. I have made a couple of inquiries and I will let you know if they pan out". Bourke responded (Exhibit D18) that Council's legal advice was that "these details are very important" and he wanted her to keep him informed.
The prosecutor did not seek to bring any evidence to refute the claim made by the defendant (T2, p174, L14, and [63] above) that "no one" had asked him whom he had engaged to remove the trees on his own site.
On 4 July 2012, Nahlous advised Maria of the limitations of Council's power to intervene regarding trespass, and suggested that she seek legal advice (Exhibit D13).
The defendant's proceedings against George and Maria, in the Local Court (12/181866), were brought in the name of Australasian Developments (Australia) Pty Ltd (? - see [32] above), and were resolved by handwritten Short Minutes of Order dated 13 July 2012 (Exhibit D15), apparently without any evidence being presented. Maria was pressed in cross-examination about not satisfying the costs order made among those orders, but she claimed that requests for an account were ignored (see T1, pp287 - 291, and 398). She did, however, testify that, although she lost rather than settled, the conflict between the neighbours "calmed" substantially after that litigation was concluded (T1, p236).
On 13 December 2012, Maria complained to Bourke that the defendant had breached the terms of his agreement with her, dated 13 November 2011, notably in regard to the "making good" of, or replacement of, the timber fence on their boundary (see T1, pp278 - 279).
Council issued its summons, charging the defendant, on 20 December 2012.
[17]
H: Consideration
The legal considerations involved in this prosecution concern the construction and application of the TPO and its exemptions. The charge is founded on a breach of the TPO, and the defence on the availability of the exception/exemption in cl 4(b)(vii) ([32] above), because the trees were within 2 metres of a "building".
There is now no contest between the parties that the TPO was validly made, and applies to Nos 493 and 491, and to the Swamp Mahogany trees on 493, but the defendant bears the onus of establishing that the 2 metre exemption applies, on the balance of probabilities: Evidence Act 1995, s 141(2); DPP v United Telecasters Sydney Ltd [1990] HCA 5; 168 CLR 594, as applied by Cowdroy J in Bird, at [75].
I reject the elaborate argument put by the defendant that the exemption is enlivened in this case (1) by the Council's approval of a building which would extend to the boundary of 491/493, and so be less than 2 metres from the trees once constructed, and/or (2) by the commencement of preparatory building works pursuant to that approval.
The authorities upon which Mr Brezniak relied on the issue of statutory construction actually support the contrary case put by Mr Howard: Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; Mills v Meeking (1990) 169 CLR 214; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355.
Upon its proper, "purposive" construction, the exemption clause clearly refers to an existing - or what Mr. Howard calls (par 21) a "real" - building.
I agree with Mr Howard (par 21) that if the exemption were intended to apply to a proposed building it would have included appropriate words making that effect clear. The authorities consistently decline to read additional words into a provision when such an extension of its scope is not clearly intended or required.
I also agree with Mr Howard (par 24) that, if the exemption clause governed the question regarding these trees, the detailed assessment by Council, which addressed the trees in the DA process "would have been entirely otiose".
I conclude that the TPO covered the removal of the subject trees.
Having so concluded, such removal required the consent of both the Council, and the Papadeases, as owners of the land on which they stood.
Maria says that she signified such consent, as owner, on an application form she gave the defendant to submit to Council. Council's case is that the defendant did not lodge it, and that it has not been received by Council, but the defendant denies that he even had it (T2, pp122 - 126 and 143 - 145, but see also T2, p137, LL 24 - 35 and [137] above).
The Court's decision on the charge comes down, therefore, to assessment of the factual evidence, the final state of which, on both sides of this prosecution is unsatisfactory in many respects. The Court was left with many unanswered questions, and many non-sequiturs.
The Court has to be satisfied beyond reasonable doubt of the defendant's guilt.
As Justice Martin noted in his Board of Inquiry Report into the conviction of David Harold Eastman (at pars 1835 - 1837), feeling "fairly certain" of guilt is not sufficient if a "nagging doubt" remains. The possibility of doing the defendant an injustice remains significant.
While the defendant made much of inconsistencies, vagueness, and possible incompleteness on the part of some prosecution witnesses (especially Maria and Meredith), no plausible explanation was provided for similar shortcomings in the defence case, exhaustively chronicled by Mr Howard in his written closing submissions.
The defendant frequently declined to confirm alleged statements or events put to him, but stopped short of denying them.
The Council relies heavily on the evidence given by Maria, but she in turn relies heavily upon notebooks and "scrapbooks", not produced, in which she records key matters (e.g. [154] above). Her evidentiary sources in this matter were only selectively disclosed, and she clearly omitted from her supporting documentary material all text messages, and many emails, later shown to be relevant.
The defence's "no case" submission on 19 September 2013 was heavily based on attacking her credit, and that of Meredith, who also failed to include key facts as to his discussions with the defendant.
I accept Mr Howard's submission (T3, p32) that Meredith's failure to depose to the fact of a third conversation on the morning of 14 November 2011 does not derogate from his firm adherence to his evidence of what he said or did not say to the defendant about cutting the trees.
I rejected the "no case" submission on the grounds that it focussed on the affidavit material and largely ignored the elaboration provided for the Court in the prosecutor's oral and documentary case, which left a number of live issues for the defendant to address.
In the absence of clear evidence implicating the defendant beyond reasonable doubt, the prosecution bears the onus of establishing that the circumstances surrounding the removal of the trees are so incriminating that "the only rational inference that could be drawn" is that the defendant caused the removal: Shepherd v R (1990) 170 CLR 573, per Dawson J at 578.
While the prosecution case clearly generates a "rational hypothesis" that the defendant proceeded to secure the trees' removal immediately his deal with Maria was struck, on 13 November 2011, it is not the only rational hypothesis, and the defendant, while tentative, confused, somewhat evasive, and unconvincing in much of his evidence, was consistently firm and resolute, indeed often quite aggressive, in his denials of responsibility for the removal of the trees on 14 November 2011 (at one stage even interrupting an objection being made by his counsel - T2, p69).
His manner of answering questions was often rather convoluted. As but one example, I quote this exchange with Mr Howard (T2, p166, LL 15 - 25):
Q. … You understand that you can give a version of events that would, if accepted, make you not guilty of the charge that you've been charged with. That's something you understand?
A. Yeah, but I've always been consistent in my account, but as to the memory and doubts I've always made it clear that there are things that I doubt and memory problems. I'm a human, it's been a two year case now. Initially I never thought that it will get here when people blamed me for it and now I'm here so my story is clear, I think, in the big picture, connect the dots. I haven't changed anything and I think it even confirms with many of the things put by the counsel and Maria Papadeas herself. But if you can raise to me where you think I'm changing my mind maybe I can answer.
Mr Brezniak conceded (T3, p49, L39) that the defendant often "responded in sometimes tortured ways". (See, for example, the extensive quotations of transcript at [136] - [138] above.)
The defendant's fundamental position was often stated in terms such as these (at T2, p106, LL 13 -14):
I never intended to do something the council doesn't want or the law doesn't allow me to.
Or (T2, p110, LL 4-5):
…I obviously always in my head, since day one wanted to do everything in accordance with council requirements and her agreement…
and he insisted (T2, p166, L18) that he has "always been consistent in [his] account…", while the prosecutor submitted that the defendant shifted his position as the Council's evidence unfolded.
Rational inferences or hypotheses, other than any indicating the defendant's guilt, are also available on the evidence. Indeed, the defendant's own evidence and his counsel's submissions specifically raise and press the reverse inference against Maria, she admitting to being on site at the time she says that the trees were removed, a time at which both the defendant and Meredith put the defendant at the Council chambers.
Maria was as firm in her denials of the reverse hypothesis advanced by the defence against her, as the defendant was in his denials, and the "Maria hypothesis" must be assessed against Mr Howard's submissions that (par 72):
At no stage was any sensible reason put to Mrs Papadeas as to why she would have arranged for the removal of the trees, and paid for it, when the defendant had agreed to remove them at his own cost.
and (par 75):
Not only is it absurd to blame Mrs Papadeas for the trees being cut down, but there is a fundamental inconsistency between that theory and the theory that Mr Meredith, in effect approved the cutting down of the trees. If it is the case, as the defendant contends, that Mr Meredith gave the green light for the trees to be cut down on Monday morning, there is no reason why the defendant would have departed from the proposal fixed prior to the Monday, that he would remove the trees using the tree loppers he had on site that day.
Refutation of the hypothesis implicating the defendant, on the other hand, comes down to the serious way in which he confronted much of the prosecution evidence, and the sustained vehemence of his denials, given his personal credentials ([15] - [18] above), albeit that a finding against him in a matter like this could damage him professionally (T3, p48, LL35 - 37).
The prosecution rests on the hypothesis as an alternative to relying on admissions it alleges were made by the defendant, especially on 14 November 2011.
The prosecutor asserts that the defendant, in his major conversation with Meredith on 14 November 2011, made the admission "I am removing the trees". However, the defendant disputes Meredith's asserted content of the conversation, and, having some experience now of how the defendant speaks, the Court takes that statement to represent, probably, no more than the thrust of the agreement he struck with Maria on 13 November.
The prosecution also relies on an alleged admission made by the defendant in a conversation with Maria, of which she deposed (her pars 51 and 53):
51. Later that day [14 November 2011], the Defendant came to see me in the surgery and we had a conversation in words to the following effect:
Myself: "That was quick - how did you get Council approval so quickly"
Diaa Karaali: "Oh it was already sorted. I just had to pay the fee to Council and show them your owners consent."
Myself: "How did you get prior approval when I had not given owner's consent until Sunday?"
Diaa Karaali: "My certifier sorted it. It is in my construction certificate. All I had to do was lodge the form with Council."
Myself: "Did you give a copy of our agreement to the Council too?"
Diaa Karaali: "No they don't need to be involved in that. They just need to see your consent."
...
53. The very next time I saw the Defendant I went up to him and we had a conversation in words to the following effect:
Myself: "The Council says there was no approval. It is a $1.5 million fine to cut down trees without permission. You assured me you said you already had approval!"
Diaa Karaali: "Look I already had the tree loppers booked for Monday and I did not want to cancel. They were already here cutting down the other trees. I went to Council and I tried to lodge the forms. They told me that I could lodge the forms but I could not cuts down the trees until we got approval. There was no point in putting the forms in because the trees had already gone. My certifier had sorted everything out. It was just a miscommunication between the different departments at Council."
When cross-examined about this evidence (T1, pp272 - 273), Maria adhered to it, but the defendant denies (T2, p181) speaking to her at all on that day. He says (T2, pp51 and 163) that he called only Meredith and Ko, and then left the site. (The prosecutor says that it defies logic that, having found the trees gone, he would not approach the affected landowner, with whom he had reached a removal agreement.)
I do not accept beyond reasonable doubt that the defendant made the admissions alleged.
I must, therefore, return to the evidence underpinning the inference or hypothesis against him.
There is no doubt that the defendant persisted for a long time with his efforts to persuade the Papadeases, who had resisted the removal of the subject trees, to agree on having someone remove them, and there is clear evidence that their removal would objectively be to the defendant's advantage, even though he downplays its extent (T2, pp78 - 82).
Council officers' reports on the defendant's DA referred to the trees as posing a "major constraint" on his project, but, faced with the neighbours' determined reluctance to give up their trees, the defendant accepted the reality of the restrictions their retention caused for his development, namely the constriction of its basement space.
I accept the defendant as a man of "some business acumen" (T2, p16, L7). In the end, he accepted the realities of the Council's consent and conditions, but he remained keen to "do a deal" with the neighbours, under which he would pay compensation for, and all the costs involved in, the trees' removal, hoping that the removal could occur when trees loppers were operating, with Council approval as part of his DC, on his own site, on the morning of 14 November 2011.
On the question of motive, the defendant, as I have noted, downplayed the advantage he gained from the removal of the trees - assuming the Council would modify the DC to remove condition 118, and allow more basement space - but he alleged (T2, p56, LL41 - 49) that the Papadeases were anxious to gain more parking space on their land, and wanted (1) to move the dental surgery into the defendant's development, and (2) to secure the defendant's help with various building or development matters.
In closing submissions Mr Brezniak did not dispute that the defendant wanted (1) to cut the trees on 14 November, (2) Papadeases' permission to do so, and (3) to then build his basement to the boundary.
He submitted that in view of the "history" between the neighbours, Maria could not be accepted as an objective witness, and that Meredith may well have been motivated by a desire to cover some mistake he made in responding to the defendant.
While I accept, for example, that the defendant did not display the same urgency on the Monday morning to obtain a necessary "clearance" from Council, as he did to obtain, over the weekend, a firm agreement from Maria that he could remove the trees, I am not satisfied beyond reasonable doubt that he is responsible for that removal.
[18]
I: Conclusion
For all the above reasons, I order that the Council's summons of 20 December 2012 be dismissed.
All exhibits, except Exhibit P2, are returned.
[19]
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Decision last updated: 03 February 2015
While the Council alleges that the removal was ordered and/or organised by the defendant, and that it was carried out, most probably, by unidentified tree loppers he had on his site on that day, (subs pars 34 - 36), its investigation was not thorough, and its counsel (par 35):
"... disavows any suggestion that the failure of the defendant to call the contractors, or disclose their identify (sic) justifies any Jones v Dunkel [(1959) 101 CLR 298] inference. No such inference should be drawn."