The Council of the City of Gosford v Tauszik [2005] NSWLEC 183 | Case summary

JUDGMENT 1 HIS HONOUR : The defendant was charged with an offence against s 125 of the Environmental Planning and Assessment Act 1979 in the following terms: "That he did, without obtaining the consent of the Prosecutor, carry out development in that he did cut down, remove, injure, and wilfully destroy three trees on Lot 308 DP14592 being 6 Pearl Parade, Pearl Beach in the State of New South Wales, the carrying out of which development without such consent was forbidden to be done by Clause 44 of the Gosford Planning Scheme Ordinance. " 2 In the summons the particulars of the place of the offence were given as Lot 308, DP14592 known as 6 Pearl Parade, Pearl Beach. Particulars of the offence were in the following terms: "The defendant did cut down, remove, injure and wilfully destroy three Norfolk Island Pine trees, each approximately of twelve metres height which cutting down, removal, injury and wilful destruction was forbidden by the Gosford City Council Tree Preservation Order, being an Order made pursuant to the provisions of an Environmental Planning Instrument for the purposes of the Environmental Planning and Assessment Act 1979, namely Clause 44 of the Gosford Planning Scheme Ordinance." 3 Pearl Beach, including 6 Pearl Parade, is controlled by the Gosford Planning Scheme Ordinance, which was originally made pursuant to Part 12A of the Local Government Act 1919. Although amended on many occasions, the Planning Scheme Ordinance continued in force until at least the date of the alleged offence. It is a deemed planning instrument for the purposes of the Environmental Planning and Assessment Act 1979 which came into force in September 1980. 4 Clause 44 of the Planning Scheme Ordinance is in the following terms: "44. (1) Where it appears to the responsible authority that it is expedient for the purpose of securing amenity or of preserving existing amenity, the responsible authority may, for that purpose and by resolution, make an order (hereinafter referred to as a 'tree preservation order') and may, by like resolution, rescind or vary any such order. (2) A tree preservation order may prohibit the ring-barking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees specified in the order except with the consent of the responsible authority and any such consent may be given subject to such conditions as the responsible authority thinks fit. (3) A tree preservation order may relate to any tree or trees or to any specified class, type or description of trees on land described in the order and that land may be described particularly or generally by reference to the City of Gosford or any divisions thereof. (4) The responsible authority shall forthwith upon the making of a tree preservation order cause notice of the making of the order to be published in the Gazette and in a newspaper circulating in the area in which the land described in the order is situated. (5) A person who contravenes or causes or permits to be contravened a tree preservation order shall be guilty of an offence. (6) In any proceedings under this clause it shall be sufficient defence to prove that the tree ring-barked, cut down, topped, lopped, removed, injured or wilfully destroyed, was dying or dead or had become dangerous. (7) The powers conferred on the responsible authority in pursuance of this clause shall not apply to trees in a State forest or on land reserved as a timber reserve within the meaning of the Forestry Act, 1916, nor to any trees to which the provisions of Section 26D of the Water Act, 1912, or the Rivers and Foreshores Improvement Act, 1948, apply. (8) A tree preservation order made by the responsible authority under this Ordinance and in force immediately before the commencement of the Gosford Planning Scheme (Amendment No 6) Ordinance shall be deemed to be a tree preservation order made by the responsible authority under this clause." 5 It is relevant to emphasise the provisions of subclause 2, which provides for the matters which may be prohibited by a tree preservation order. Subclause 5 provides that a person who contravenes a tree preservation order shall be guilty of an offence. 6 The particulars in the summons do not identify a tree preservation order made in any particular year. The prosecution has been the subject of a previous interlocutory application considered by Pain J. In her reasons for decision her Honour refers to the tree preservation order which the council purported to make in 1998. However, it is now accepted by the parties to these proceedings that whatever may have occurred in 1998, a valid tree preservation order was not made and, accordingly, the steps by which it was purportedly made need no further consideration. 7 Although the council had previously made tree preservation orders, in 1985 the council resolved to adopt a tree preservation order pursuant to the provisions of cl 44 of the Gosford Planning Scheme Ordinance. The defendant concedes, for the purpose of these proceedings, that the order made in 1985 was validly made. Clause 2 of that order provided that, "No person shall ringbark, cut down, top, lop, remove, injure, or wilfully destroy any tree without council approval." 8 Clause 3 of the order provided that the tree preservation order related to "all trees having a height exceeding three metres from the ground and all species and descriptions of trees on all land within the City of Gosford, covered by the provisions of the City of Gosford Planning Scheme Ordinance", or nominated interim development orders. 9 In 1987 the council considered a recommendation that it adopt a revised tree preservation order pursuant to the Gosford Planning Scheme and the same nominated interim development orders. The recommendation was in the following terms: A. "That council adopt the tree preservation order as set out in attachment 1 to the Draft Policy and publish notice of the resolution in the Government Gazette as required under the provisions of the relevant planning instruments." 10 Further provision was made in the recommendation for the adoption of landscape and vegetation policies. 11 The tree preservation order referred to in the attachment included clause 2 in the same terms as clause 2 of the tree preservation order adopted in 1985. There were some differences between the two forms of the order. 12 Notwithstanding the requirement of the recommendation which was adopted by the council that notice of the resolution be published in the Government Gazette, it was agreed between the parties that this did not occur. Accordingly, not only was the council's resolution not carried forward and implemented but cl 44(4) of the Planning Scheme Ordinance was not complied with. 13 Because of this failure to publish the notice of the order in the gazette, argument has ensued before me as to whether or not the 1987 resolution had the consequence of providing for a valid tree preservation order. The defendant submits that the failure to publish renders the order invalid or inoperative. Moreover, and because the resolution was carried by the council, expressing an intention to replace the 1985 tree preservation order with a 1987 resolution, the effect has been to impliedly repeal the 1985 tree preservation order. It is submitted that the consequence is that the cutting down of trees is not prohibited by any operative tree preservation order. 14 I do not accept this submission. To my mind, although the council resolved to make a tree preservation order in 1987, the failure to notify as required by the resolution and cl 44(4) of the Planning Scheme Ordinance have the consequence that, although made, the tree preservation order is not operative and in force. In my opinion, the consequence must be that the 1985 tree preservation order remains in force. It could hardly be otherwise. When the council resolved to adopt the 1987 form of the tree preservation order it could not have intended that by the mere adoption of the resolution the 1985 order would cease to exist. If that was the case there would inevitably have been a period between the date of the resolution and the time at which arrangements could have been made to publish the tree preservation order in the gazette. The consequence would be that for that period of time there would have been no restriction on the capacity to remove trees within the Gosford City. The council could never had intended this to be the case. Accordingly, if it be the case that the 1987 resolution has not been carried into force, then it must follow that the 1985 tree preservation order continues to operate. 15 However, although this issue should be resolved as I have indicated, the issue is of little moment in these proceedings. If the 1987 resolution operates to create a valid and operative tree preservation order, notwithstanding the failure to publish, then, the terms of cl 2 being identical with the tree preservation order adopted in 1985, there will be no relevant distinction. 16 The basic facts in this matter are not in dispute. The defendant accepts that on the relevant day he arranged for three trees at the front of his property at Pearl Beach to be cut down. The trees were Norfolk Island Pines, each of about twenty four metres in height and appear to have been planted at the same time many years ago. The three trees were the central trees to a row of five. The northernmost tree was not interfered with, nor was the southernmost tree. The three trees which were taken down were planted within no more than two metres of each other and would have formed a dense foliage which would have been likely to obstruct views from the defendant's two storey dwelling. The dwelling house looks to the east through where the trees were previously located, out to Broken Bay. The beach at Pearl Beach is on the eastern side of the roadway which lies between the beach and the defendant's property. 17 As I have indicated, the proceedings have been framed in the summons which alleges a breach of s 125 of the Environmental Planning and Assessment Act 1979. Section 125(1) is in the following terms: "125(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act." 18 It may be seen that the subsection has two limbs. The first limb refers to a matter or thing which may be directed or forbidden to be done by or under the Act. The second limb relates to matters where a council, or other person authorised, has directed a thing to be done or forbidden a matter or thing to be done. 19 Section 127 of the Act was in a different form at the time these alleged offences occurred than it is today. The consequence of the form of subs (5) and (6) when the offence was allegedly committed are that unless the offence properly falls within the first limb of s 125, the prosecution will be out of time. 20 The proper classification of the offence was the subject of interlocutory proceedings before Pain J, to which I have already referred. It was submitted to her Honour that rather than the offence which may have been committed, being identified as the carrying out of development in circumstances where development consent was required, it should be understood as the cutting down of trees contrary to the provisions of the tree preservation order. As the tree preservation order was made by the council pursuant to the power provided to it under cl 44 of the Planning Scheme Ordinance. it was submitted to her Honour that the alleged offence was confined to the second limb of s 125. 21 Her Honour rejected the argument and, in carefully considered reasons, identified earlier decisions of this Court in which the same question had arisen, although on occasions in relation to whether or not development consent was required under the Act, rather than in the context of a prosecution for a failure to obtain that consent. In her reasons for decision, her Honour drew upon the decision of Lloyd J in Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 in which his Honour refers to his earlier decision in Meriton Apartments Pty Limited v Ryde City Council (1998) 108 LGERA 352 (I note that the report suggests that the Meriton decision was that of Cowdroy J but in fact it was an earlier decision of Lloyd J). 22 Her Honour also identifies the fact that there is a discussion by Talbot J in Hornsby Shire Council v Kline NSWLEC, 29 October 1998, unreported, and Bignold J in Hornsby Shire Council v Winslow (1998) 101 LGERA 117 of similar questions. In each of those cases, the form of the Planning Scheme Ordinance or the relevant clause which controlled the making of tree preservation orders, was distinctly different to that which exists in the present case and which is in the same form as that considered by Lloyd J. 23 As I have already related, cl 44(5) of the Gosford Planning Scheme Ordinance provides that a person who contravenes a tree preservation order is guilty of an offence. Pain J found that as a consequence by the operation of the tree preservation order which prohibits the cutting down of the relevant trees, subclause 5 contains a prohibition, being a prohibition made in a Planning Scheme Ordinance which is a deemed instrument under the Environmental Planning and Assessment Act 1979. In that Act the definition of development includes (f) "Any other act, matter or thing referred to in s 26 that is controlled by an environmental planning instrument." 24 Section 26(1) contains a catalogue of matters that may be included in an environmental planning instrument, and includes (e) "Protecting or preserving trees or vegetation." 25 Accordingly, s 76A will operate in relation to the cutting down of trees because in its terms it provides: "If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: …" (the relevant consent has been obtained) 26 Because s 26 includes the protecting or preserving of trees when provision is made for this purpose in an environmental planning instrument, it will be a control upon development as defined. Accordingly, if the relevant control requires consent before a tree is cut down, a failure to obtain that consent will constitute a contravention of s 76A and an offence pursuant to the first limb of s 125(1). 27 Because her Honour has found that the relevant provisions operate in the manner I have indicated in earlier proceedings in this very case, in my view, the application which has been made for me to review her Honour's decision and grant a stay of proceedings is misconceived. I note that an appeal against her Honour's decision was filed in the Court of Criminal Appeal, but not pursued. In my opinion, if the matter was to be re-agitated at an interlocutory stage, an appeal was the appropriate course, otherwise the matter falls to be determined in this Court having regard to her Honour's earlier decision. 28 In any event, I am of the opinion that the construction given to the relevant legislative provisions by her Honour is correct and I would not depart from it for the reasons given by Pain J and Lloyd J. 29 Many years after the council first adopted tree preservation orders, for the reasons which appear to have been related to the administrative burden of administering the application and consent provisions in relation to them, the council resolved to adopt a landscape and vegetation management policy. Although there were undoubtedly earlier versions of the policy, a revised version, relevant to the current proceedings, was apparently adopted in 1998. The policy contains many clauses. Of relevance to the present proceedings are provisions which are made for the circumstances in which approval for the removal of trees or the cutting of limbs may be assumed rather than an application being required and if appropriate approval granted by the council. 30 The relevant provisions are contained in s 6 of the policy which is headed "Approval not required." Clause 6.1 is in the following terms: "Removal of trees: Council consent may be assumed for removal of trees within three (3) metres of any approved building, provided a particular tree is not on Schedule 1 of the Tree Preservation Order, and if it is, then the individual case be reviewed on its merit to determine if removal would be appropriate." 31 The policy does not provide a definition of "approved building" but it is accepted by the council that in the circumstances of this case, a dwelling would be an approved building. The nearest dwelling to the trees which were removed is that known as 7 Pearl Parade, which is the property immediately to the north of 6 Pearl Parade 32 For the purpose of these proceedings the council also accepts that if it cannot demonstrate that the circumstances of the trees which the defendant arranged to be removed fall outside cl 6.1, then the defendant can rely upon the clause and the prosecution will fail. 33 The clause is not free from ambiguity and the various options have been explored in the evidence and arguments in this case. Should the distance of three metres be measured from the trunk or the centre of the tree? Should it be measured from the extreme point of any branch of the tree? Should it be measured only horizontally or, as the council argued, should the distance be confined by a vertical measurement above the roof of any adjoining dwelling? 34 As it happens, in my opinion, it is unnecessary to provide a definitive answer to all of these questions. To my mind, as the clause provides a concession to what would otherwise constitute a control which provides for a criminal offence, any ambiguity should be resolved against the council and in favour of the person who seeks to rely upon the policy. 35 The defendant draws attention to cl 6.4 of the policy which is in the following terms: "Council's consent may be assumed for the pruning of any branch growing directly over the roof line of an existing dwelling, in accordance with Australian Standards AS4373." 36 The standard is not relevant to the present proceedings as it merely provides for the effective means of making the cut. 37 Although in many cases the activity permitted by cl 6.4 will be within that which is permitted by cl 6.1, this may not always be the case. I do not believe that one particularly vigorous branch will necessarily bring the tree within three metres. However, a number of branches will. 38 To my mind, cl 6.1 raises a question of fact to be decided in each case. The position of a Moreton Bay Fig tree with its massive trunk and equally massive branches which may at any particular point on the tree qualify as part of the trunk, and which may, in massive form, extend from the trunk to form part of the canopy of the tree needs to be accommodated by the clause. The application of cl 6.1 to such a tree compared with one which may be more clearly defined so that it is easy to identify the separation between the trunk and its branches, such as a Norfolk Island Pine, will be apparent. 39 Because the clause was intended to speak in relation to all forms of tree, I do not believe it appropriate to confine its operation so as to allow for the removal of trees only when the trunk, measured from any relevant point, is within three metres of an approved building. 40 It is clear, to my mind, that the purpose of s 6 of the policy was to relieve property owners from the obligation of making an application and obtaining consent to remove particular trees when a tree may interfere with the amenity or safety of an existing dwelling. Given this purpose for the policy, it would be of little utility if the separation contemplated between tree and building was expressed only in terms of the relationship of the trunk to the building when, as will occur with many trees, a great part of the tree may be comprised in its canopy which has a potential to cause considerable inconvenience, but more importantly, give rise to significant safety issues for the occupants of any dwelling which may be below the reach of the canopy. In any event, as I have indicated, in my view ambiguities must be resolved in favour of the property owner, and, accordingly, I do not believe it appropriate to confine the reach of the concession in cl 6.1 to the circumstances where the trunk of the tree is outside the three metre limit. 41 As I have indicated, the question of whether or not a particular tree is within three metres of an approved building, is a matter to be determined on the facts of each individual case. Accordingly, it is necessary to look at the circumstances of the particular trees in the present case to determine whether or not approval for their removal could be assumed. 42 Evidence of the location of the three trees was given by the contractor who the defendant engaged to remove them, Mr Dawkins. Although some of his evidence was diminished in cross-examination and his memory was shown to be poor in some respects, the essential elements of his evidence in relation to the location of the relevant trees, were not disturbed. That evidence is contained in an affidavit which was read in the proceedings. 43 Para 10 in that affidavit was in the following terms: "The tree closest to the house on 7 Pearl Parade (next door) (tree A) had some branches which touched or came very close to the eave and gutters of that house. I cannot recall the exact number of branches which were in actual contact with the house, but there were between one and three branches quite close. No work was done to this tree, and no work was requested by Mr Tauszik to be done to this tree." 44 Para 11 is in the following terms: "The first tree to be cut down was the one next to the Tree A closest to the house at 7 Pearl Parade. I call this first tree to be cut down Tree B. Tree A and Tree B had some branches which overlapped by about a foot to two feet. Tree B had no branch which extended towards the house at 7 Pearl Parade so that it came any closer than the trunk of Tree A. There was only a foot or two of overlap. The branches reaching into the property towards the house on the site from Tree B were longer than the ones reaching towards Tree A. None of the branches on Tree B went as close to the house at 7 Pearl Parade as the branches from Tree A. I estimate that the closest a branch from Tree B came to the house next door would be about 3 metres." 45 Para 12 is in the following terms: "The workers and I then cut down the next 2 trees (Tree C and Tree D in order as you move further from the house next door) along the front of 6 Pearl Parade. Each of these trees stood further and further away from the house on 7 Pearl Parade. The branches of these trees hung over the grass on the property itself, and over the front fence into the grassy verge of the street. No branch of any of Tree C or Tree D came anywhere near the house next door. The distance of branches was well in excess of 3 metres, at least twice that distance for Tree C and a lot further for Tree D." 46 When cross-examined Mr Dawkins was asked about his recollection of the trees which he cut down. He was referred to paras 10, 11 and 12 of his affidavit and was asked these questions: "Q. That's the first time you mention anywhere in any document I have, your estimate of the distances of branches of trees from a neighbouring house? A. Yep. Q. That correct? A. Yep. Q. You'd never been back to that house, had you, after you cut down the trees? A. No. Q. And when you swore the affidavit on 18 September and when you added these pages, signed at the bottom on 22 September, that was without the benefit of going back to have a look, wasn't it? A. Yes. Q. And this is the first time you'd been asked to cast your mind back the distances of branches from houses, wasn't it? A. Yes. Q. And at the time you did the job, you had no reason to measure the length of the branches, did you? A. No. Q. And you didn't measure the length of branches before you cut down those trees, did you? A. No. Q. You just did what you were told, cut down the trees? A. Yep. Q. I suggest to you, Mr Dawkins, you simply can't remember the length of those branches of the trees you cut down? A. They were quite large. Q. They were, weren't they? A. Yes. Q. They were quite large and lengthy? A. Yes. Q. But you're not going to tell us how long, other than that? A. Rough estimate, probably 15 foot. Q. And some were longer than others weren't they? A. Yes. Q. That would be an average of about the ones you saw? A. Yes. Q. There could have been some longer, there could have been some shorter? A. Yeah. Q. They were pretty old and mature pines, weren't they? A. Yes. Q. And as you say, it wasn't your job to measure them? Correct? A. No. Q. I suggest to you, you simply can't remember accurately how long or how short any particular branch was of the trees you cut down? A. Yep." 47 Although Mr Dawkins was challenged as to his recollection of the length of any particular branch, he was not challenged as to his statement that the distance of branches from trees C and D from the adjoining dwelling was well in excess of three metres. Mr Dawkins' evidence was criticised by reason of the fact that although he was originally investigated for his part in the cutting down of the trees, arrangements were made whereby following an offer from his solicitor, in which it was indicated he would be prepared to give evidence, proceedings which had been commenced against him were discontinued. 48 It is also plain that, in some respects, Mr Dawkins does not have a clear recollection of all of the matters relevant to these proceedings. However, notwithstanding the criticisms that are made, I am satisfied that his evidence in relation to his observation of the distance of the three trees from the adjoining property should be accepted. 49 There is further evidence which assists in the resolution of the question as to how far each of the trees was distant from the adjoining property. It would appear that no measurements were undertaken with a tape measure or other similar instrument before the trees were cut down. I shall return to that when I discuss the evidence of the defendant in relation to correspondence and discussions he had with the council. 50 However, the prosecutor and the defendant each called experts in arboriculture, who had carried out measurements of the distance between the stumps which remain of the three trees and the adjoining property. And each expert gave an opinion as to the likely reach of the branches of those trees. Before considering that evidence I should briefly refer to a letter which the defendant wrote to the council following the council raising concerns in relation to the removal of the trees. The letter is dated 26 July 2002. 51 In the letter the defendant says, in relation to the trees: "Due to the very close planting of the trees, their natural sunlight and access to soil and nutrients was impeded and they were turning into very poor and unhealthy trees. This was confirmed by an arborist working for my tree contractor." 52 Elsewhere in the letter the defendant described the trees as being in a "weakened condition from lack of sunlight and nutrients." 53 Mr Machin gave evidence for the prosecution and Mr Ford was the expert who gave evidence on behalf of the defendant. They were agreed as to the distance of the northernmost tree, which I will refer to as tree 3, from the adjoining cottage. Measured from the stump, the tree was just over three metres away from the nearest point of the dwelling, being the gutter attached to the eave. 54 In these circumstances, having regard to the evidence of Mr Dawkins as to his observations in relation to the proximity of limbs from that tree to the adjoining house, I am not satisfied that this tree was located outside the three metre distance in respect of which consent may be assumed. Accordingly, I do not need to discuss the evidence in relation to that tree any further. 55 With respect to the second tree, which I will refer to as tree 2, being the tree in the middle of the three and therefore south of tree 1, Mr Machin measured it as being 5.3 metres from its trunk to the nearest point of the adjoining dwelling. Mr Ford proffered two measurements, one 5.1 metres and another 4.5 metres. 56 Tree 3, again to the south of tree 2, was measured by Mr Machin as 7.6 metres from its trunk to the nearest point of the dwelling. Mr Ford measured it to be 7.3 metres. 57 Mr Ford drew upon measurements of the remaining two trees, the one on the northern end of the five and the one on the southern end, and trees in a nearby reserve and concluded, by having regard to the length of branches on those trees which were also Norfolk Island pines, that the branches of trees 2 and 3 could have extended the required distance so as to intrude within three metres of the adjoining dwelling. He was of this view particularly because, in his opinion, the denial of light by the tree immediately to the north of each of the trees cut down would have caused the middle trees to seek light elsewhere stimulating growth to the north-west. Because it is apparent from the remaining stump that tree 3 has a greater circumference at its trunk than the other trees, in his opinion, it can be assumed that that tree was move vigorous. 58 Accordingly, in Mr Ford's view, this would have enabled that tree to extend branches further than other trees and, accordingly, they may have intruded within the three metre arc of the adjoining dwelling. 59 Mr Machin disagreed with the opinions of Mr Ford. As is apparent from the photographs which have been tendered, the character of the foliage on the northernmost tree which remains is vigorous to the north, east and west but significantly diminished on its southern side. In Mr Machin's opinion, this is an indication of the capacity of a tree, in this location, to grow when uninterrupted sunlight is available to it but demonstrates what will occur where the sunlight is impeded. Because the sunlight to the three trees cut down must have been impeded by the tree to their north, Mr Machin's opinion is that the opportunity for those trees to send branches in a north-westerly direction through the tree to its immediate north and to within three metres of the adjoining house was not possible. 60 Mr Machin points to the photographic evidence of the condition of the southernmost tree which remains, pointing out that on its northern side the limbs are significantly diminished, which he concludes is a consequence of the denial of sunlight from the north together with the physical barrier which would have been presented by the trunk and limbs of the tree to the north. 61 The opinion of Mr Machin is, of course, consistent with the comments of the defendant in the letter of 26 July 2002. Mr Machin's opinion is also consistent with the evidence of Mr Dawkins to which I have earlier referred. And, importantly, his opinion is clearly consistent with the evidence available from the photographs of the remaining trees. 62 Mr Machin is also critical of Mr Ford's reliance on trees in an adjoining reserve when he provides an estimate of the likely reach of branches from the three trees which were removed. The trees in the adjoining reserve are of the order of three metres apart providing an opportunity for uninterrupted light and an area in which the limbs may grow without interference from the adjoining trees. That opportunity was not available to the trees which were removed on the subject site for the reasons I have already indicated. 63 Mr Machin was a convincing witness and his evidence was, in my opinion, consistent with the known facts in the manner I have indicated. 64 Although it is true, as Mr Ford suggests, that in order to provide an effective growth regime the three removed trees would have to have sent branches into areas where light was more available than to the north, examination of the location of each of the trees relative to the adjoining dwelling does not indicate that the removed trees would have had the opportunity to send branches in the necessary direction. Those trees may have provided for their healthy growth by sending limbs to the east and the west but in order to grow in the direction of the adjoining dwelling, limbs would have had to have been growing in a north-northwest direction where the limbs of the adjoining trees would have interfered with sunlight and the physical capacity to grow. 65 In coming to the conclusion which I have, I did not ignore the fact that the separation of limbs of Norfolk Island pines provides an opportunity for an adjoining tree to grow its limbs between the limbs of another tree. It is apparent, when one observes Norfolk Island pines, that it is not uncommon for limbs to cross over. However, I am completely satisfied that although some of the limbs of trees 2 and 3 may have intruded into the limbs of the tree to their immediate north, the competition for sunlight and nutrients from the close planting of the trees would have precluded any opportunity for limbs to have extended to within three metres of the adjoining property. 66 To my mind, by drawing upon the growth pattern of the remaining tree to the north of those removed and the well spaced trees elsewhere adjacent to the site to support his opinion, Mr Ford has not utilised the best evidence available as to the likely growth patterns of the trees which have been removed. For the reasons I have indicated, I have concluded that the evidence of Mr Ford cannot be relied upon. 67 As I have already indicated, the defendant wrote to the council by letter dated 26 July 2002, that letter was in the following terms: "Thank you for your letter of 28 June. I am writing to respond to your request for me to explain the removal of the trees. As previously discussed with you, there were five Norfolk Island pine trees planted at the front boundary of this property, directly underneath power lines. Three of those trees were removed. Each of the three trees that were removed had branches significantly overhanging the dwelling of the neighbour at 7 Pearl Parade and was which were within three (3) metres of that dwelling. The total frontage of this property is only 15.5 metres wide. The five trees were planted between 1.5 and 2.0 metres apart. Prior to contracting to have the trees removed, I did a lot of research, including a very close reading of Council's Tree Preservation Order, Council's Landscape and Vegetation Management Policy (Ref: R6.03, 190.43.03) (the "Policy") and Energy Australia's policies and procedures for "Trees and Powerlines". As set out below, I sincerely believed that no Council or other approval was required for the removal of the three Norfolk Island Pines pursuant to clause 6 of the Policy because they were within 3 metres of a dwelling. If I have mistakenly interpreted these materials incorrectly, then I am very sorry. Prior to removal of the trees, I consulted with the neighbour and she was in fact happy to have the trees removed given that they posed a significant safety hazard due to the proximity to her house. The neighbour at 7 Pearl Parade is rather elderly and unwell. Due to the very close planting of the trees, their natural sunlight and access to soil and nutrients was impeded and they were turning into very poor and unhealthy trees. This was confirmed by an arborist working for my tree contractor, (Tidy Trees, Nick Dawkins, …). This meant they were even more of a significant threat of falling onto the neighbour's property, especially given they were within 3 metres of her house. I have been informed from a number of nurseries that the recommended planting distance between Norfolk Island pines is a minimum of at least 6 metres apart. As mentioned above, the trees were planted directly under power lines and a number of their branches were actually touching the power lines themselves. Energy Australia specially notes that Norfolk Island pine trees pines as part of the Araucaria species are not suitable for planting under powerlines. As a result, I believed that there was a significant risk of causing potential damage. This could have been either as a result of the branches touching the powerlines or the trees themselves falling on the powerlines due to their weakened condition from lack of sunlight and nutrients. I also conducted research with Energy Australia regarding what could be done about the trees and the powerline hazard. They told me that it would be several months before they could get to Pearl Beach, but that I could pay my own contractor to cut the trees. Before doing any work I also checked that none of the trees were listed on the Council's Significant Tree Register. I would also like to point out that I always intended to plant new vegetation in the place of the Norfolk Island pines. Specifically, I have been researching to see what native shrubs or plants are indigenous to and consistent with the native vegetation in the area directly around Pearl Beach, and that are more appropriate for the area and for planting directly underneath powerlines. It is clear from the surrounding vegetation that the Norfolk Island pines are not native trees indigenous to the area and were not suitable for planting beneath the powerlines. For the all of the above reasons, I sincerely believed that no Council or other approval was required for the removal of the three Norfolk Island pines pursuant to clause 6 of the Policy. On that basis, I organised for a qualified tree contractor to remove three trees. If I have misinterpreted or misread all the materials above, I sincerely apologise. Please do not hesitate to contact me should you require any further information on …. ." 68 The defendant also had a conversation with Mr Pike of the council on site on 17 June 2002. In his affidavit, tendered in these proceedings, Mr Pike records the following as occurring during that conversation. He says: "Prior to writing that letter, on 17 June 2002, I met on site with Mr Tauszik in the company of Peter Hickman, the Manager of Recreational Services employed by the Prosecutor. Upon asking Mr Tauszik about the cutting down of the 3 Norfolk Island Pines, Mr Tauszik said 'the trees are exempt because they're so close to that building', or words to that effect, indicating the dwelling on the adjoining property at 7 Pearl Parade, Pearl Beach. I said 'The stumps are clearly further away from any building than three metres', or words to that effect and he replied 'No, I checked the policy'. A few days later, I received a telephone call from Mr Tauszik who said during the course of that conversation 'Where can I get a copy of the Tree Preservation Policy?' or words to that effect. I said 'It is available on Gosford Council's web page' or words to that effect, and I then gave him the web page address. He then said 'Thank you' and the conversation was terminated." [It was after this conversation that Mr Pike received the letter of 26 July 2002 from the defendant]. 69 The defendant also had an interview with Mr Pike and Mr Gary Chestnut on 23 September 2002. Notes of that interview have been tendered in these proceedings. 70 The defendant relies upon his letter and the conversations with the council officers to raise the "defence" of honest and reasonable mistake. The mistake is said to be the defendant's belief that he could assume consent in accordance with cl 6.1 of the policy because the trees were each within three metres of the adjoining dwelling. 71 The essential elements of this matter, of course, require the defendant to have a knowledge of the policy and, with that knowledge, to have formed the requisite view as to the location of each of the trees. With respect to the defendant's prior knowledge of the policy, the evidence of Mr Pike is plain and was not contradicted. 72 I accept Mr Pike when he says that in his conversation with the defendant on 17 June that his understanding was that the trees "are exempt because they are so close to that building" and, furthermore, accept his evidence of the telephone call a few days later when the defendant asked Mr Pike where he could get a copy of the Tree Preservation Policy. 73 I am satisfied beyond any doubt that such a request would not have been made if the defendant had, in fact, accessed the policy before the trees were cut down and had then formed a conclusion as to the location of the trees by reference to the policy, after an examination of the trees on the site. 74 However, to my mind, there are further difficulties with this issue from the defendant's perspective. 75 Careful examination of the defendant's letter reveals some remarkable inconsistencies within it. He says in the first paragraph that, "Each of the three trees that were removed had branches significantly overhanging the dwelling of the neighbour at 7 Pearl Parade". 76 It is then said, presumably with a typographical error, that the trees "were within three metres of the dwelling." 77 In support of the desirability of removing the trees, the defendant says they were in poor health and were a danger to the neighbour's property. Notwithstanding that this was proffered as a justification for the removal of the trees, the northernmost tree, which was the closest to the dwelling, was not touched. 78 Having regard to the known location of the trees following measurement, it is inconceivable that the statement that each of the three trees that were removed significantly overhung the dwelling could be true. The suggestion that the trees were removed for the safety of the neighbour is also untenable having regard to the fact that the most proximate tree remains. 79 During the course of the removal of the trees, the defendant was not on the site. I accept the evidence of Mr Dawkins that he was there before the task commenced and gave instructions as to the trees which were to be removed. I also accept Mr Dawkins when he says that upon inquiry he was told by the defendant that he was not to worry about matters with the council. 80 During the course of the removal of the trees, some neighbours visited the property and challenged Mr Dawkins as to whether or not there was authority for the removal of the trees. Mr Dawkins made contact with the defendant. Rather than being told that the trees could be removed because the council had a policy that trees within three metres of dwellings could be removed without consent, or in similar words, he was merely told that he need not trouble with matters of the council and that the defendant would attend to them. 81 To my mind, if the defendant at that point had a belief that he could rely upon the council's policy to justify removal of the trees, he would have told Mr Dawkins this and suggested to Mr Dawkins that he might tell the neighbours. This would have had the consequence of nipping in the bud any suggestion that the work which was being undertaken was illegal. 82 Furthermore, to my mind, if the defendant was relying upon the policy when the issue of the lawfulness of the removal of the trees was raised by the neighbours, it is likely that he would have invited Mr Dawkins to check and make sure that the trees were within the three metre distance. Apart from not suggesting that Mr Dawkins carry out such a measurement, nowhere in his letter or in conversations with the council officers did the defendant ever suggest that he had carried out a measurement. 83 To my mind, before it could be said that a defendant had a reasonable view that, in the present circumstances, trees were located within the three metre distance, some organised effort to measure the extent of the trees and identify their relationship with the adjoining building, would have been required. A mere guess or even an assumption could not be sufficient. 84 As I have indicated, the defendant never suggested that he had carried out a measurement either to the council officers or to Mr Dawkins. Furthermore, when he was asked on site by Mr Pike about the matter, his response was that the trees are exempt because they are so close to the adjoining building but did not respond by saying the trees are exempt because they are within three metres. 85 To my mind, if the defendant had concluded that he could rely upon the policy, he would have been particularly conscious of the need for the trees to fall within the three metre distance and would have proffered this explanation to Mr Pike. 86 Having regard to all of these matters, I am satisfied beyond doubt that the defendant did not have the policy, when he directed the trees to be cut down, did not rely on it, and, furthermore, had not formed any view that any of the trees were within three metres of the neighbouring dwelling. 87 The elements of the "defence" of honest and reasonable mistake were considered in Proudman v Dayman (1941) 67 CLR 536. That decision has, of course, been discussed on many occasions since, with an authoritative discussion being that of the Chief Justice in the State Rail Authority v Hunter Water Board, (1992) 28 NSWLR 721. As the Chief Justice makes plain, the defence can only operate in circumstances where the defendant has the requisite belief, mere inadvertence is not sufficient. However, once the issue has been raised, it is for the prosecution to prove beyond reasonable doubt that the belief was not held. 88 As I have indicated, I am relevantly satisfied in the present matter. 89 Earlier I indicated that when these proceedings commenced before me the defendant sought to pursue a motion for summary dismissal or stay of the proceedings. The arguments presented in support of the motion were all matters which have arisen for consideration in the course of the proceedings. After the motion had been ventilated and argued, a decision was made which, in my view, was appropriate, that rather than seek a determination of the motion at an early stage of the proceedings, the case should continue and I would deal with the matters raised in the stay motion in the ultimate decision. 90 All of the matters raised in the course of the motion have been canvassed in my reasons and it will follow that in due course that motion is dismissed. However, for the reasons I have indicated, in relation to two of the three trees I find the offence proved. **********

The Council of the City of Gosford v Tauszik

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Cases Cited (5)

Cited By (2)