Willoughby City Council v Revelas

Land and Environment Court (NSW)|1995-12-22|Before: Bignold J

CITATION : Willoughby City Council v Revelas [2004] NSWLEC 147 PROSECUTOR: Willoughby City Council PARTIES : DEFENDANT: Revelas FILE NUMBER(S) : 50052 of 2003 CORAM: Bignold J KEY ISSUES: Environmental Offences :- injuring tree without consent under TPO-honest and reasonable mistake LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 125 Canada Bay City Council v Bird (2003) 124 LGERA 303; He Kaw Teh v The Queen (1985) 157 CLR 523; Ku-ring-Gai Council v Pentecost (unreported 22 December 1995); Power v Penthill House Pty Ltd (1993) 80 LGERA 247; CASES CITED: R v Olbrich (1999) 199 CLR 270; Sutherland Shire Council v Holt (unreported 27 March 1997); Thomson v Martin unreported 30 November 1990; Timbs v Shoalhaven City Council (2004) NSWCA 81; Walsh v Bar-Mordecai (1987) 62 LGRA 195 DATES OF HEARING: 11-12, 17/12/2003 DATE OF JUDGMENT: 04/08/2004

PROSECUTOR: Ms G Furness, Barrister SOLICITORS Mallesons Stephen Jaques

IN THE LAND AND Matter No. . 50052 of 2003 ENVIRONMENT COURT Coram: Bignold J OF NEW SOUTH WALES 8 April 2004

This is a defended charge of an offence against the Environmental Planning and Assessment Act 1979, s 125 (EP&A Act) which alleges that the Defendant, between 1 February 2003 and 12 May 2003 did, without the consent of the Council, injure a tree being a Eucalyptus Piperita (Peppermint Gum) growing on his property known as No 1 The Tor Walk Castlecrag in circumstances where under the Tree Preservation and Management Order made pursuant to the clause 8 of the Environmental Planning and Assessment Model Provisions 1980 consent of the Council was required to be obtained for the carrying out of that activity.

The injury to the tree was caused in the course of the removal of a major branch, that action having been undertaken at the direction of the Defendant by a stone mason contractor which was then currently engaged by the Defendant to build a series of retaining walls on the Defendant's property which slopes steeply to its water frontage on Middle Harbour. (In separate proceedings in this Court both the contractor and the Defendant have been convicted of the same offence of building the retaining walls without having obtained development consent for such development).

As will presently appear, the only substantial disputed issue raised in the hearing of the present charge is whether the Defendant, in commissioning the contractor to remove a major branch from the tree held an honest and reasonable belief that the tree was in a dangerous condition such that it might fall over and injure somebody, and that by removing the major branch it would be less likely that the tree would fall over.

However, before coming to that disputed issue, it is first necessary to state the relevant facts that are not in dispute (which are principally covered by the Statement of Agreed Facts Exhibit 1).

The facts according to the Statement of Agreed Facts (Exhibit 1) are as follows: 1. These proceedings relate to works carried out at Lot 37 in Deposited Plan 6689 known as 1 The Tor Walk, Castlecrag ( the Property ). The Prosecutor 2. The Prosecutor is Willoughby City Council constituted under section 204 of the Local Government Act 1993 and, accordingly, is vested with the functions referred to in the Act (the Council). The Property 3. The Property is zoned 2(a2) Residential under the Willoughby Local Environment Plan 1995 (WLEP 1995). Development for the purpose of a dwelling house within the 2(a2) Residential zone may only be carried out with development consent. Under clause 6 of WLEP 1995, adopting clause 8 of the Environmental Planning and Assessment Model Provisions 1980, consent is required to be obtained for: the removal or trimming of specified trees. Dr Revelas 4. At all material times Dr Revelas was the owner of the Property. 5. At all material times Dr Revelas was the principal who engaged, authorised and instructed:

(a) Bensen & Partners Pty Limited; and (b) P&V Masonry Pty Limited. Eucalyptus piperita 6. The Eucalyptus piperita is a tree of 40 to 50 years old, has a trunk diameter of about 450mm and is 12 metres in height. It is located approximately 22 metres to the east and below the completed dwelling on the Property at the location shown on the plan which is annexed and marked A. Application for Removal of Tree 7. On 25 July 2002 Benson & Partners Pty Limited submitted an application for the removal of the Eucalyptus piperita pursuant to clause 8 of the Environmental Planning and Assessment Model Provisions 1980 (the Removal Application). The Removal Application was accompanied by a report by Ted Taylor, dated 31 July 2002, which stated that: There is a serious tree location problem in that this tree is poised on the edge of a 5 metre sheer drop to a terraced area below. The base of the tree is right at the edge of an eroded cliff face. The photographs 3 and 4 show this erosion that partly undermines the root plate of the tree. [The tree's] location at the edge of an eroded cliff face means that it must be considered as dangerous to life and property. It is my opinion that strong winds, particularly if accompanied by heavy rain, could cause the whole tree to fall onto the terrace below. The risk will increase as the tree continues to grow. From the obvious risk to safety posed by this tree I must recommend that it be removed.

The Removal Application and accompanying report are annexed and marked B .

On 15 August 2002 the Council refused the Removal Application. Trimming of Tree 9. Between 1 February 2003 and 12 May 2003, Mr Abou-Sleiman, a principal of P&V Masonry Pty Limited, removed a branch from the Eucalyptus piperita. The branch extended beyond the stone retaining wall, almost perpendicular to the main trunk of the tree. The branch was approximately 200mm in diameter at the point o its junction with the main trunk of the tree. 10. Mr Abou-Sleiman removed the branch of the Eucalyptus piperita at the direction of Dr Revelas without the approval of the Council where approval was required. The removal of the branch was not in accordance with the Australian Standard 4373 - 1996. 11. A report on the Eucalyptus piperita was carried out by Haddad Khaicy Partners, dated 19 June 2003, which stated that: images taken from sight (sic) […] clearly show the roots exposed causing the tree to be in our view unstable. Should the tree collapse, the sandstone walls within the vicinity would be severely damaged, and the possibility of human injury is a real threat. Therefore, we recommend the tree be removed as soon as possible. This report is annexed and marked C .

Annexed hereto and marked respectively "A", "B" and "C" are copies of the documents that are annexed to the Statement of Agreed Facts and are referred to therein.

THE NATURE of the OFFENCE WITH WHICH THE DEFENDANT IS CHARGED

The charge alleges an offence against the EP&A Act, s 125(1) which is in the following terms: (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.

It is apparent that s 125 creates multiple offences in respect acts of commission and omission in respect of matters that are directed or forbidden to be done (i) by or under the EP&A Act itself or (ii) by the Minister and the Director-General, a council or other person who is authorised by or under the Act (to so direct or to so forbid).

The charge in the present case refers to "the Tree Preservation and Management Order made pursuant to cl 8 of the Environmental Planning and Assessment Model Provisions 1980" (the Model Provisions).

Clause 8 of the Model Provisions provides as follows: Preservation of trees 8. (1) Where it appears to the council that it is expedient for the purpose of securing amenity or of preserving existing amenity, it 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 council and any such consent may be given subject to such conditions as the council 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 particularly or generally by reference to the Local Government area or any divisions thereof. (4) The council 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) It is a sufficient defence to proceedings under this clause relating to the ring-barking, cutting down, topping, lopping, removal, injury or wilful destruction of a tree to prove: (a) that the tree was dying or dead or had become dangerous; or (b) that taking the action was reasonably necessary to protect human life, buildings or other property from imminent danger from a bush fire burning in the vicinity of the land on which the tree was situated; or (c) that written notice about the proposed action was given to the council of the area in which the tree was situated and the council, before the action was taken, confirmed in writing:

(i) that the tree was in a fuel free zone within the meaning of the document entitled 'Planning for Bush Fire Protection ' published by the Department of Bush Fire Services; and (ii) that, if the council has classified species of trees as being likely to present a significant fire hazard, the tree was of such a species; or

(d) that written notice about the proposed action was given to that council, a period of not less than 14 days occurred after the notice was given (and before the action was taken) and the council did not advise the person during that period that it opposed the action being taken. In this subclause, notice means a notice that includes the name and address of the person who gives it and that explains that a tree of a named species situated in a specified position on land described in the notice is intended to be ring-barked, cut down, topped, lopped, removed, injured or wilfully destroyed for the purpose of bush fire hazard reduction. (7) The powers conferred on the council 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, or to trees required to be trimmed or removed under section 48 of the Electricity Supply Act 1995.

Clause 8 of the Model Provisions is included in those provisions that are adopted by the Willoughby Local Environmental Plan 1995 (the LEP) cl 6 of which provides: The Environmental Planning and Assessment Model Provisions 1980 are adopted for the purposes of this plan except for the definitions of terms defined in clause 5(1) of this plan and clauses 7, 15, 16, 18, 23 and 33 of the Model Provisions.

Such partial adoption of the Model Provisions is expressly authorise by the EP&A Act, s 33(1) which provides as follows: (1) An environmental planning instrument may, by reference, adopt wholly or partially any set of model provisions made by the Minister by order published in the Gazette.

The LEP applies to all land within the City of Willoughby: vide cl 3(1).

On 25 August 1997, the Council resolved to make a Tree Preservation Order (TPO), the relevant terms of which are as follows: 1. Objective To secure and preserve the amenity and enhance the environment of the City, by providing a regulatory framework for the preservation and management of trees. 2. Land to which the Order applies This Order applies to all land within the Willoughby City Council area. 3. Trees and Vegetation to which the Order applies Except where exemptions are detailed in Clause 4, this Order applies to: a) any trees including shrubs, whether endemic, exotic or introduced species, which have:

i) a height exceeding 4 metres, and/or ii) a trunk girth over 600mm or 200mm in diameter, measured at 1 metre above the ground, and/or iii) a branch canopy width exceeding 3m

b) any vegetation in bushland c) any locally rare or threatened plant species (list available from Council). 5. Prohibition 5.1 Except as otherwise provided in this Order, a person shall not ringbark, cut down, lop, remove, injure, prune or wilfully destroy any vegetation in Clause 3, except with the approval of Council under this Order and in accordance with any approval and conditions thereof. 5.2 Except as otherwise provided in this Order, a person shall not excavate resulting in severing portions of a tree's root system, or substantially changing soil levels around any vegetation in Clause 3 for structures, driveways or installation of utilities, except with the approval of the Council under this Order and in accordance with any approval and conditions thereof. 5.3 Any person who contravenes or causes or permits to be contravened the provisions of this Order shall be guilty of an offence and liable to prosecution under Sections 126 and 127 of the Environmental Planning and Assessment Act 1979.

Clause 4 of the TPO specifies various exemptions from the application of the TPO including the following exemption (which has some relevance to the present case even though the exemption is not claimed by the Defendant who admits that the relevant "pruning" was not executed in accordance with the stipulated Australian Standard). · The pruning of individual trees by less than 10 % of the foliage area within a period of not less than 12 months between 2 consecutive prunings. Work must be done in accordance with Australian Standard 4373 Pruning of Amenity Trees.

Clause 6 of the TPO contains detailed provisions for the making of applications for approval under the TPO and for the determination of such applications by the Council. Included in the matters which the Council must take into consideration in determining such an application are the following matters - (b) whether the vegetation presents or is likely to present a health or safety hazard to persons; and (c) whether the vegetation has damaged or would be likely to damage property.

The Appendix to the TPO contains a number of definitions of terms employed by the TPO including the following definition of "injure" injure includes the administering of a chemical or artificial substance to a tree or any part of a tree or, the mechanical or physical wounding of a tree or any part of a tree or, the alteration of ground level or water table which causes damage to the tree or any part of the tree. ADDITIONAL FACTS RELEVANT TO THE CHARGE

There are two other relevant facts which are not encompassed by the Statement of Agreed Facts (Exhibit 1) - namely:

(ii) the extent of the foliage canopy of the tree that was lost by virtue of the removal of the branch.

The first mentioned matter is an essential element of the offence charged whereas the second matter is not an essential element. There is no real dispute on the first mentioned matter but there is a dispute on the second matter.

Concerning the question of "injury" to the tree, the following extracts from the affidavit sworn 18 June 2003 by Harry Diversi, a landscape officer employed by the Council (Exhibit 5) concerning his observations of the tree when he attended the defendant's property on 12 May 2003 in the company of another Council officer (Mr Timbs) and upon which he was not cross-examined, satisfy me that the tree was relevantly injured. 7. ….At the time of my inspection I observed that the Tree had a healthy canopy with well-attached branches. 8. I saw that a large cut had been made into the trunk to remove a branch that had been removed between 2 and 3 months prior to my inspection for the following reasons (i) the cut and wound were recent, as the timber was not faded or weathered, and had lost none of its natural colours; and (ii) I saw that the Tree was bleeding from the sapwood at the wound. 9. I saw that the branch removal was carried out by cutting across and below the branch collar, leaving a wound in excess of 200mm wide and 300mm long, with a large section of torn and damaged wood as the branch fell away from the trunk. In my opinion this was due to the fact that no bottom cut was made to prevent such damage from occurring. 10. AS4373:1996, Section 5, Pruning Procedures and figures 1 and 2 deals with the removal of branches from trees. In my opinion, the removal of the branch was carried out other than in accordance with this Standard because the pre-cutting requirements in Section 5.3 of AS4373-1996 were not carried out and because the final cut resulted in a protruding stub, and damaged the branch collar and trunk, in contravention of Section 5.4(a) of AS 4373-1996. 11. In my opinion, the Tree was protected by Clause 3 of Willoughby City Council's Tree Preservation Order, dated 25 August 1997, as I observed that it was over 4 metres in height, had a trunk girth of over 600mm or 200mm in diameter, and a branch canopy width exceeding 3 metres……... In my view, the removed branch could not have been dead as I saw that the wood at the chainsaw cut and along the tear was healthy and free of pest and disease infection. 12. In my view, the wound caused by the pruning of the tree will significantly reduce the Safe Useful Life Expectancy (SULE) of this tree, as the healing process will be impeded and the likelihood of infection significantly increased. Such infections will over time significantly reduce the structural integrity of the trunk.

The Defendant did not challenge the evidence of Mr Diversi on the question of the injury to the tree. Indeed, the Defendant, in par 13 of his affidavit (Exhibit D) corroborates Mr Diversi's evidence when he states: Upon seeing the Tree after the branch had been removed, I was shocked and disappointed at the manner in which this had been done. It was evident to me that Mr Abou-Sleiman had not first undercut the branch so that it would fall cleanly when the major cut was performed from above.

The other fact concerning the extent of tree foliage or canopy lost by virtue of the removal of the branch is not a fact or element of the offence charged but the manner in which the Prosecution evidence on the matter was given at the trial opened up the question whether more than one branch had been removed from the tree by the Defendant or at his instruction.

In order to appreciate how the Prosecution evidence on this matter unfolded at the trial and how that unfolding in turn gave rise to strenuous objection from the Defendant it is necessary to note that in the Summons charging the offence no particulars are supplied of the injury to the tree. Particulars are supplied of the tree.

In the affidavit evidence filed and served by the Prosecutor (the affidavits of Mr Diversi, Mr Thyer and Mr Timbs) the only references to either "the injury" to the tree or the loss of tree canopy are to the injury or canopy loss that was occasioned by the removal of the one major branch.

In her opening address, Prosecuting Counsel stated that the Prosecution case was that a protected tree had been injured when a significant branch was removed in a manner that was not in accordance within the relevant Australian Standard and in a manner that caused a tear to the tree to be sustained.

In the Statement of Agreed Facts (Exhibit 1) which was tendered by the Prosecutor pars 9 and 10, both refer to the removal of one branch from the tree.

Concerning the fact of loss of tree canopy, Mr Diversi in par 11 of his affidavit estimated the amount of canopy loss by virtue of the removal of the one branch "exceeded 10 per cent".

The Defendant in par 11 of his affidavit (Exhibit D) stated that the tree foliage supported by the removed branch "accounted for under 10 per cent". In the same paragraph he refers to the fact that the TPO does not require Council approval for the removal of less than 10 per cent of the foliage of the tree.

In his affidavit in reply to par 11 of the Defendant's affidavit evidence, Mr Thyer expresses the opinion ("based upon his inspection of the tree in November 2000 and August 2002 and the photographs annexed to Mr Diversi's affidavit showing the tree before and after the branch was removed") that "the part of the tree removed constituted more than 10 per cent of the foliage area (but not more than 20 per cent)".

Under cross-examination, Mr Diversi conceded that his estimate of the amount of tree canopy lost had included canopy loss unconnected with the removal of the significant branch. His revised estimate of canopy loss attributable solely to the removal of the one significant branch was 8 per cent.

He said that when he had inspected the tree on 12 May 2003 and observed the injury caused to the tree by the removal of the one significant branch he had also observed other cuts on 4 or 5 other branches of the same tree and he said that these cuts indicated to him that they would have been made at a similar time when the significant branch had been removed.

He said that it was by oversight that he had not referred to these other cuts and other branches in his affidavit evidence, but that his estimate of the tree canopy loss "exceeding 10 per cent" expressed in his affidavit was intended to be his estimate of the overall canopy loss and not just that attributable to the removal of the one significant branch.

In the course of his oral testimony (including cross-examination) Mr Thyer maintained his opinion that the canopy loss of "more than 10 per cent" was his estimate of the canopy loss attributable to the removal of only the one significant branch.

In my judgment, the Prosecution evidence at the end of the day (and putting aside the most unsatisfactory manner in which the evidence emerged) on the question of the tree canopy loss and on the question that arose as a side wind of whether the Defendant had removed or caused to be removed from the tree more branches than the one significant branch which the Defendant has admitted removing, comes nowhere close to supporting a finding on the criminal standard of proof beyond reasonable doubt (see R v Olbrich (1999) 199 CLR 270 at 281) that (i) the Defendant caused to be removed from the tree other branches than the one significant branch he admits to removing; and (ii) that the tree canopy loss attributable solely to the removal of the one significant branch was 10 per cent or more.

THE DISPUTED ISSUE OF HONEST AND REASONABLE MISTAKE

Before considering the evidence relevant to this issue, I should note at the outset that the competing cases have been presented upon the common basis that the offence created by the EP&A Act, s 125 is a strict liability offence in respect of which honest and reasonable mistake of fact is a ground of exculpation: He Kaw Teh v The Queen (1985) 157 CLR 523 at 532; Walsh v Bar-Mordecai (1987) 62 LGRA 195 at 201; Power v Penthill House Pty Ltd (1993) 80 LGERA 247 at 253.

However, the parties diverge on the question whether the statutory defence provided for in cl 8(6) of the Model Provisions is available in the present case with the Prosecutor denying the availability of the statutory defence in reliance upon the recent decision of Cowdroy J in Canada Bay City Council v Bird (2003) 124 LGERA 303.

But there is an even greater significance to the present case of the availability of the statutory defence because if the statutory defence is held to be unavailable, the Defendant's reliance upon the common law exculpation based upon honest and reasonable mistake will be necessarily unavailing because the relevant mistake raised by the Defendant only goes to the factual foundation of the statutory defence ie that the tree from which the Defendant caused the removal of the branch (in the process of which injury was inflicted on the tree) was a tree that "had become dangerous".

Accordingly, it is appropriate that I at once proceed to resolve this fundamental dispute in the competing cases.

In Canada Bay City Council v Bird, the relevant charge was of an offence against the EP&A Act, s 125(1) in that each defendant without consent had lopped trees that were forbidden to be lopped by the Drummoyne Council Tree Preservation Order (TPO) made pursuant to the Drummoyne Local Environmental Plan 1986 (at p 305).

The TPO in that case contained the following provisions relating to relevant "prohibitions" and "exemptions": (5) Prohibition

Except as otherwise provided in this order, a person shall not prune, remove, ring bark, cut down, top, lop, remove, injure or wilfully destroy any tree except with the consent of Council under this order and in accordance with any consent and any conditions thereof.

The owner of the land being private property or person with the consent in writing of that owner may without the consent of Council on private property only under this order on that land carry out the work of pruning, removal, ring barking, cutting down, topping, lopping or wilfully destroying a tree where the tree:

(a) is dead (but dead tree habitat potential should be considered), or the removal of dead branches;

Each defendant in that case sought to rely upon the statutory defence provided by cl 8(6) of the Model Provisions in addition to the statutory exemption provided by the TPO. However, Cowdroy J held at 315 that the Model Provisions and the defence provided by cl 8(6) thereof had no application to the charges. His Honour's reasons for so concluding are expressed in the following passages at 314/315: The offence is stated in the summonses to be a breach of the TPO being an order made pursuant to the LEP. By s 26 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") a local environment plan may make provision for protection of trees. The particulars contained in the summons identify the TPO by the date of its adoption by resolution of the Drummoyne Council and the date of the gazettal. The Model Provisions may be adopted by a local authority wholly or partially by an environmental planning instrument as provided by s 33(1) of the EP&A Act. It is apparent from the text of s 33(1) of the EP&A Act that the provisions of an environmental planning instrument may make provisions other than those contained in the Model Provisions, and may revoke or vary any such provisions. It is not a requirement of the Model Provisions that the whole of cl 8 thereof be implemented. Further, clause 8 of the Model Provisions does not purport to be a comprehensive regulation relating to tree preservation. The sub-clauses refer to matters which may, or may not, be adopted by a local authority. No penalties are provided for any breach, indicating that the ultimate regulation for any tree preservation order resides in the discretion of the individual local authority. In this instance, Drummoyne Council, while using the facultative provisions contained in cl 8 of the Model Provisions to make the TPO, has provided for a complete code for its TPO, including penalties and has provided for a defence which is more restricted than that which might have been available under the Model Provisions. The Model Provisions, if adopted, would have enabled the defendants to establish that defence if they proved that the trees were dying or dead. The TPO requires a defendant to prove that the trees were dead, as defined, not merely that the trees were dying, to establish a defence. It is also apparent that the Model Provisions have no application to these proceedings for another reason. The defence provided by cl 8(6) of the Model Provisions is expressly limited to "proceedings under this clause". The summons filed in each of the proceedings against the defendants have not been instituted pursuant to cl 8 of the Model Provisions. Rather they have been instituted pursuant to the TPO. The charges are specific, and are limited to a breach of the TPO which creates an offence under s 125(1) of EP&A Act. The Model Provisions are only relevant historically to show that the Drummoyne Council adopted cl 8 of the Model Provisions, thereby enabling it to prohibit the removal of trees or land affected by the provisions of its LEP.

The Prosecutor submits that the Court should follow the Canada Bay decision and hold that the statutory defence provided by cl 8(6) of the Model Provisions is not available to the Defendant in answer to the present charge.

Defence Counsel argues to the contrary and submits that cl 8 of the Model Provisions, having been adopted by the LEP provides the exclusive source of authority for the TPO and provides the framework for the operation of the TPO. As such, it is submitted that the statutory defence provided by cl 8(6) is available in answer to a charge of a contravention of the TPO by virtue of cl 8(5).

In adjudicating upon these competing submissions, it is legitimate to note an important difference between the formulation of the charges in the Canada Bay case and in the present case. In the Canada Bay case the formulation of the charge makes no reference to the Model Provisions, whereas in the present case the formulation of the charge not only makes reference to the Model Provisions but relies upon cl 8(5) of the Model Provisions for the averment of the commission of an offence against the EP&A Act by virtue of the contravention of the TPO.

Another point of distinction in the facts of the two cases is that in the Canada Bay case his Honour held that the TPO provided for a more limited defence than that provided by the Model Provisions in cl 8(6) whereas in the present case, the TPO does not provide for any statutory defence (although it does in cl 4 prescribe a number of exemptions from the operation of the TPO). On one view, the relevant provision in the Canada Bay case was also an exemption and not a statutory defence but his Honour held it to have the character of a defence.

I think that these identified differences between the two cases provides a legitimate basis for distinguishing on the facts the Canada Bay case from the present case.

If it were not possible to legitimately distinguish on the facts the Canada Bay case, I would, with great respect, not be disposed to adopt his Honour's analysis of the relationship between cl 8 of the Model Provisions and the EP&A Act, s 26(e) in understanding the provenance and operation of the TPO. This is because (i) cl 8 of the Model Provisions has been entirely (and not partially) adopted by the LEP; and (ii) s 26(e) empowers an environmental planning instrument to contain provisions "for or with respect to - (c) protecting or preserving trees or vegetation". Accordingly, s 26(e) authorises, in conjunction with s 33, the adoption by the LEP of cl 8 of the Model Provisions. By itself s 26(e) does not authorize the making of the TPO, that authority being conferred by cl 8 of the Model Provisions. Moreover, it is to be noted that the earlier decided cases have recognized the availability of the statutory defence provided by cl 8(6) of the Model Provisions to an offence involving a contravention of a TPO (eg Walsh v Bar-Mordecai).

Finally, I note that in the very recent decision of the Court of Appeal in Timbs v Shoalhaven City Council (2004) NSWCA 81 (a civil negligence case) Sheller JA (at par 4) referred to the effect of a tree preservation order relevant in that case in the following terms: The Tree Preservation Order was made pursuant to the provisions of cl 8 of the Environmental Planning & Assessment Act Model Provisions 1980 as adopted by the City of Shoalhaven Local Environmental Plan 1986. Relevantly, the order prohibited in defined areas which included the Timbs' property, cutting down any tree which met defined standards, including three metres or more in height, which the tree which fell undoubtedly did, without the written consent of Council. Clause 8(5) provides that a person who contravenes or causes or permits to be contravened a Tree Preservation Order shall be guilty of an offence but cl 8(6) provides that it is a sufficient defence to proceedings under this clause relating to cutting a tree down to prove: (a) that the tree … had become dangerous.

If the Prosecution, as in the present case, relies upon cl 8(5) of the Model Provisions for charging the relevant offence, it is only fair and fitting that the Defendant have the benefit of the statutory defence provided by cl 8(6).

For the foregoing reasons, I hold that the statutory defence provided by cl 8(6) of the Model Provisions is available to the Defendant in answer to the present charge.

This conclusion has greater relevance in the present case to the Defendant's reliance upon honest and reasonable mistake as to whether the tree relevantly "had became dangerous" at the time that the major branch was removed from it, as providing a ground for exculpation from the strict liability imposed by s 125 of the EP&A Act.

In this respect, it is to be noted that in Bar Mordecai I held (for the reasons stated at 200 to 202) that the defence of honest and reasonable mistake of fact was available in respect of an offence against the EP&A Act, s 125 based upon the contravention of a tree preservation order, even where the mistake concerned the question whether the tree "had become dangerous" which was one of the alternate factual foundations for the statutory defence that was provided by the equivalent to cl 8(6) of the Model Provisions.

The Prosecutor has not challenged the correctness of Bar-Mordecai (which I have applied in subsequent cases - Thomson v Martin (unreported 30 November 1990); Ku-ring-Gai Council v Pentecost (unreported 22 December 1995); and Sutherland Shire Council v Holt (unreported 27 March 1997)).

To similar effect, in the Canada Bay case, Cowdroy J (at 316/317) held that the defence of honest and reasonable mistake of fact was available in respect of the same matters that were the subject of the statutory defence provided by the TPO in that case.

Accordingly, I shall proceed to examine the evidence and determine the disputed issue of the Defendant raising honest and reasonable mistake of fact upon the basis that it provides a ground of exculpation to the present charge (if it is properly raised at trial and at the end of the case the prosecution has failed to dispel the doubt: see He Kaw Teh at 592/593 per Dawson J).

The relevant Defence evidence on this issue is principally contained in the Defendant's affidavit (Exhibit D) upon which he was cross-examined.

It is preferable that I firstly recite the relevant passages of the Defendant's affidavit before referring to the course and outcome of the oral testimony of the Defendant. The relevant passages of the Defendant's affidavit are as follows (noting that some of the matters deposed to are included in the Statement of Agreed Facts (Exhibit 1) and in the materials annexed thereto): 3. In July 2002 overgrowth was cleared from the Property and a small cottage on the north eastern corner was demolished. Once the cottage and overgrowth had been removed the exposed roots of the Tree became more obvious and I became concerned about the stability of the Tree. Standing where the cottage had been, the (exposed) roots of the Tree are approximately 5 metres above ground level. 4. On 9 July 2002 Benson & Partners Pty Limited submitted an application on my behalf for the removal of the Tree (the 9 July Removal Application). The 9 July Removal Application is annexed to this affidavit and marked A. 5. In mid July 2002, an officer of the Council telephoned my wife to advise her that the Council wanted the 9 July Removal Application to be accompanied by an arborist's report. I instructed Benson & Partners Limited, my Architects and Project Managers for the new house on the Property, to follow up on this advice. 6. On 25 July 2002 Benson & Partners Limited submitted an application on my behalf for the removal of the Tree (the 25 July Removal Application). The 25 July Removal Application was accompanied by a report by Ted Taylor, Tree Care Consultant dated 31 July 2002, which stated that: There is a serious tree location problem in that this tree is poised on the edge of a 5 metre sheer drop to a terraced area below. The base of the tree is right at the edge of an eroded cliff face. The photographs 3 and 4 show this erosion that partly undermines the root plate of the tree. [The tree's] location at the edge of an eroded cliff face means that it must be considered as dangerous to life and property. It is my opinion that strong winds, particularly if accompanied by heavy rain, could cause the whole tree to fall onto the terrace below. The risk will increase as the tree continues to grow. From the obvious risk to safety posed by this tree I must recommend that it be removed. 7. On 15 August 2002 the Council refused the 25 July Removal Application. In the Council's refusal document, the author of the refusal, Mr Peter Thyer, stated in his given Reason that: the Tree appears to have grown since the ground was excavated, and seems stable. Upon reading this sentence three things occurred to me. First, Mr Thyer states that the tree appears to have grown . This statement struck me as pure speculation with no factual foundation. Second, I realised that Mr Thyer believed that excavation had taken place when it had not. The foundations of the cottage that had been demolished were several metres below the base of the tree. Thirdly, the use of the word seems regarding the stability of the Tree did not instil any confidence in my mind, especially given Mr Thyer's mistake about the excavation. 8. Further, in the next sentence of the Reason for refusal, Mr Thyer recommended that there be a retaining wall built to retain the earth and future growth of the tree. In my mind this was a contradiction to the claim that the tree seems stable and confirmed my original concerns. In the reason for refusal, I noted that a separate reason for refusal 2 was that the Tree had been identified in the Development Consent as a tree which had to be retained. In my mind, this seemed to take no account of the fact that when the Development Application was assessed the Tree was inaccessible and could not have been properly assessed. 9. Notwithstanding my reservations over the conclusions in Mr Thyer's report I sought to have the recommended retaining wall built. I asked Mr Abou-Sleiman, a principal of P&V Masonry Pty Limited, who was carrying out, in or about January 2003, the remediation of the pre-existing retaining wall behind the site of the demolished cottage, to do this That wall is perpendicular to the boundary of the Property and runs from next to where the tree is located. Mr Abou-Sleiman investigated the possibility of building a retaining wall around the base of the tree, then informed me that the building of a retaining was not possible due to the absence of any firm footing upon which to base such a wall. 10. I was concerned that the Tree might fall over and injure someone so I asked Mr Abou-Sleiman to remove a branch from the Tree. 11. The branch extended beyond the stone retaining wall, almost perpendicular to the main trunk of the tree. The branch was approximately 200mm in diameter at the point of its junction with the main trunk of the tree and accounted for under 10 per cent of the foliage. I believed that if this branch was removed it was less likely that the tree would fall over. Annexed to this affidavit and marked B are copies of photos taken of the tree before the branch was removed and a copy of the Tree Preservation Order issued by Willoughby Council which states that the removal of less than 10 per cent of the foliage of a tree does not require prior approval of Council. 12. In June 2003, I asked Haddad Khaicy Partners to inspect the Tree and prepare a report. This report forms annexure C to the Statement of Facts. 13. Upon seeing the Tree after the branch had been removed, I was shocked and disappointed at the manner in which this had been done. It was evident to me that Mr Abou-Sleiman had not first undercut the branch so that it would fall cleanly when the major cut was performed from above. 14. My home is elevated well above the top of the tree and the water views from both levels of my home are expansive and the removed branch and the entire Tree did not in any way impair these views. Additionally, the water views from the lower parts of the property are also expansive, and, in my opinion, the branch did not impair those views in the least. In fact, I prefer having a water view framed and softened b trees rather than a stark vista and, in accordance with my original intentions expressed in the s96 Application and the s121B Order (which incorporates the planting schedule prepared by Helen Young), I am currently planting trees and other plants throughout the Property. Annexed and marked C are photos taken from the windows of my home showing that the Tree does not in any way impair my water views.

In his oral testimony, the Defendant corrected two statements in his affidavit. In par 4 he had said that his architect, Mr Bensen, had submitted the removal application to the Council on 9 July 2002 when he in fact had done so. That application (copy of which was annexed to his affidavit) was made in his own handwriting and sought the removal of the tree for the following reason - Tree dangerously close to edge and possibility of it falling in adverse conditions probable - This is as a result of it being more exposed post demolition.

In par 12 of his affidavit, the Defendant had stated that he had commissioned the Engineers, Haddad Khaicy to inspect the tree and prepare a report when in fact those Engineers had acted for the building contractor P&V Masonry Pty Ltd to provide an engineering certificate of the soundness of the retaining walls that the contractor had built for the Defendant on his property. (The Engineers' Report to the Council providing their Certificate of Inspection is annexed to the Statement of Agreed Facts).

Under cross-examination, when asked whether having heard earlier in the day the testimony of Mr Thyer, there was anything in pars 7 and 8 of the Defendant's affidavit which the Defendant would wish to revise, the Defendant said that he would now retract what he had said in the last sentence in par 8 of his affidavit and he now realised that Mr Thyer had not been mistaken as to when the site had been first excavated to provide the building pad to accommodate the original cottage located nearer the water frontage (that cottage having been demolished by the Defendant just before he made his application to the Council for the removal of the tree).

Further in the course of cross-examination, the Defendant stated that his architect Mr Bensen had chosen Mr Taylor to provide the report which accompanied the second application made to the Council on 25 July 2002 for the removal of the tree and that he had neither met, nor knew, Mr Taylor.

The Defendant admitted that after being notified of the Council's refusal of the second application to remove the tree on or soon after 15 August 2002 he had not appealed to this Court against the Council's decision and he had not made a further application to the Council for the removal of the branch which he had instructed Mr Abou-Sleiman, (the principal of the building contractor P&V Masonry Pty Ltd) to remove. He did not remember precisely when he had given that instruction to Mr Abou-Sleiman but he thought that it was in January 2003.

The Council's refusal of the second application made on behalf of the Defendant for the removal of the tree was communicated to the Defendant by notice dated 15 August 2002. That notice was on a standard TPO form and stated that following an inspection of the above property the Removal/Pruning of the tree is refused for the following reasons - (1) The tree appears to have grown since the ground was excavated, and seems stable. If there is concern about the rock/earth face, it should be retained to engineer's specification adequate to retain the earth and future growth of the tree. (2) This tree is protected as a condition of the DA

That determination had been made on behalf of the Council by Mr Peter Thyer, a Landscape Officer employed by the Council since October 2000.

Mr Thyer gave evidence both in affidavit form (Exhibit 6) and oral testimony.

In his affidavit Mr Thyer stated that he had inspected the tree on two separate occasions - firstly on 22 November 2000 for the purpose of recommending conditions of development consent in respect of the landscaping of the development site for which a development application had been made by Mr Bensen on behalf of the Defendant for the erection of a new dwelling on the property. (The new dwelling-house was erected before the end of 2002.)

In par 7 of his affidavit, he described his recollection of that inspection as follows: My inspection was carried out from ground level, viewing from adjacent to the trunk of the Tree and other vantage points on the Property. The Tree appeared to me to be healthy and undamaged. I did not see any collapse of the excavation face beside the Tree. My view of the excavation was partly obscured by the existing old dwelling built in the excavated area. I did not see any lifting of soil or roots on the northern side of the Tree away from the excavation. I observed that there was undergrowth around the base of the Tree.

His second inspection occurred on 15 August 2002 in response to the two applications that had been made by or on behalf of the Defendant for the removal of the tree. He records his recollection of the observations made during that inspection and the action that he took following that inspection in pars 11, 12, 13 and 14 of his affidavit as follows: 11. I inspected the Tree on 15 August 2002. I observed that the rock faces in the excavation below the Tree were weathered and stained with moss and lichen. The exposed soil was weathered without any sign of recent erosion, and there was no obvious build up of soil at the base of the excavation. This indicated to me that the excavation adjacent the Tree had been stable since the construction of the house previously located on the Property adjacent to the Tree. I could not see the soil surface on the excavation side of the Tree due to the existence of vegetation debris. I did not see fresh soil at the base of the excavation. This indicated to me that the excavation face was stable. I do not recall seeing any exposed roots of the Tree. 12. On 15 August 2002 I observed that a shaft of soil extended at least a metre deep in the face of the excavation. From this observation, it is my opinion that the geology of the location is similar to other local areas where I have observed substantial depth and volume of soil between natural rock shelves and floaters.
I completed an inspection sheet on 15 August 2002: Tree appears stable. Root plate does not seem to be undermined. The tree seems to have grown after the excavation with roots finding support away from the excavation. 14. I refused the application for removal of the Tree, and noted on the determination: The tree appears to have grown since the ground was excavated and seems stable. If there is a concern about the rock/earth face, it should be retained to engineers specification adequate to retain the earth and future grown of tree.

In his oral testimony, Mr Thyer added to what he had said in par 11 of his affidavit by saying that he "formed the view that the tree was not dangerous".

He was also asked whether the expressions "Tree appears stable" and "Tree seems stable" that he had employed both in his inspection sheet report and in his statement of reasons for refusing approval for the removal of the tree (that had been notified to the Defendant) had been intended to qualify his opinion that the tree was stable. He said that he had employed these expressions, not to convey "qualifications" to his opinion, but to reflect that his assessment of the tree had been based upon visual inspection undertaken on the ground.

He stated that he did not have any concern about the proximity of the tree to the rock/earth face but had, in his notice of refusal of the application to remove the tree, suggested the construction of a retaining wall "to assist the applicant for approval in its way forward".

Mr Thyer was shown the photographs taken of the tree on 12 May 2003 by Mr Timbs when he and Mr Diversi had attended the Defendant's property and was asked whether he could form a view based upon those photographs as to whether the tree was or was not dangerous. His answer was that he could not do so.

Mr Diversi, also employed by the Council as a Landscape Officer, in par 7 of his affidavit records his observation of the tree on the occasion of his inspection of it on 12 May 2003 in the company of Mr Timbs (this was the first occasion that he had seen the tree) as "having a healthy canopy with well attached branches".

In oral testimony, Mr Diversi said that when he last saw the tree on 12 November 2003 it was still healthy. There was still some bleeding around the sap wound and there was evidence of some epicormic growth.

Under cross-examination, Mr Diversi was asked about the physical conditions of the location of the tree, particularly its location immediately on top of a 5 metre high cliff face. He said that the location provided good conditions for the tree so long as it had "good anchorage, good soil depth and good root system".

Finally, I should note the relevant contents of Mr Timb's affidavit concerning conversations that he had with Mr Abou-Sleiman and the Defendant on the occasion of his inspection of the Defendant's property in the company of Mr Diversi on 12 May 2003. (Mr Timbs was not cross-examined). The relevant passages are at par 35 and part of par 47 as follows: 35. I saw the man I knew to be Paul Abou-Sleiman from my last visit. We had a conversation to the following general effect: I said: Have you removed any trees from this site when you [were] constructing the sandstone retaining walls? Mr Abou-Sleiman said: I haven't removed any trees. I said: Did you remove the large branch from the eucalypt on the northern boundary? Mr Abou-Sleiman said: Yes. Harry told me to. He said that it had been approved. I understood Mr Abou-Sleiman to be referring to Harry Revelas. 47. I said: An application was made to council for the removal/pruning of the large gum tree located on the northern boundary. This application was refused. Despite this it appears that a large substantial branch has been removed from this tree. Mr Revelas said:

Yes we were concerned that the tree was going to fall over so we applied for it to be removed. When the previous landscape plan was prepared the site was heavily overgrown. It was not until work commenced that we became aware of the true nature of the site.

That is understandable and is not unusual, however, it would have been appropriate at that time or at least prior to works being carried out that a s.96 application be made to modify the already approved landscape plan.

The disputed issue concerning exculpation involves three dimensions or questions -

(i) has the Defendant established on the balance of probabilities the statutory defence provided by cl 8(6)of the Model Provisions?

(ii) if not, has the Defendant sufficiently raised in the evidence the issue of honest and reasonable mistake of fact; and

(iii) if the issue of honest and reasonable doubt has been sufficiently raised, has the Prosecutor dispelled beyond reasonable doubt all doubts concerning that issue?

Before determining these three questions, I should first formally record my finding that the Prosecutor has on the basis of the undisputed evidence established beyond reasonable doubt each of the essential elements of the offence charged against the Defendant.

As to question (i) I find on the evidence that the Defendant has not established the statutory defence provided by cl 8(6) of the Model Provisions.

The evidence on the question whether the tree "had become dangerous" by the time that the major branch was removed (sometime between February and May 2003) includes (i) the concerns of the Defendant that the tree might fall over; (ii) the opinion of Mr Taylor in his report that supported the second application for the removal of the tree that had been made to the Council; and (iii) the evidence of Mr Thyer and Mr Diversi.

Mr Taylor did not give evidence and his opinions were not therefore tested by any cross-examination. There was no evidence establishing that Mr Taylor was a qualified arborist. His Report refers to himself as "Timber Pest and Tree Care Consultant".

The opposing opinions of Mr Diversi and Mr Thyer, both qualified arborists and both cross-examined at the trial, carries much greater weight in my evaluation of the evidence and in my findings. I accept their opinions as to the health and the stability of the tree. (I should note that Mr Taylor's Report had concluded that the tree "was in a very healthy condition" and "in a sound structural condition").

Their expert opinions on these specific issues carry much greater weight than the Defendant's concerns as a layman. This, of course, is not to denigrate any layman's concerns about the stability of a tree. However, the issue raised by the statutory defence, and which must be established by the Defendant on the balance of probabilities, is whether the tree "had become dangerous" by the time that the major branch was removed.

The Defendant has failed to discharge the onus of proof. Accordingly, I find that the statutory defence has not been established.

The second question is whether the Defendant has sufficiently in the evidence raised the issue of honest and reasonable mistake of fact.

Clearly enough, the Defendant's evidence has raised that issue. I accept that as a layman, his concerns about the safety of persons occupying the lawn area immediately below the tree, perched as it was on top of the excavation or cliff face were honestly held by the Defendant.

But the relevant question is not whether the Defendant held these concerns (and I am satisfied that he did), but whether he honestly and reasonably believed the tree had become dangerous, in circumstances where he knew that the Council had refused his two applications to remove the tree (where the second application had been supported by the Report of Mr Taylor).

The Defendant, in his evidence, explained why he considered the reasons given by Mr Thyer in refusing his application to remove the tree to be unsatisfactory or unpersuasive ("did not instil any confidence in my mind"). But even accepting this evidence in its entirety (at the trial the Defendant, having heard the testimony of Mr Thyer conceded that some of his dissatisfaction with Mr Thyer's decision had been dispelled), the question remains whether the Defendant's belief that the tree had become dangerous was a reasonably held belief measured by an objective, and not a subjective, standard of reasonableness.

Ultimately, in respect of the third question, I have been satisfied by the Prosecution case that the Defendant's belief that the tree had become dangerous at the time he caused the major branch to be removed was not a belief that was an objectively reasonable belief.

The Defendant's evidence did not satisfactorily explain why, if he had honestly and reasonably believed that the tree had become dangerous (in his words "it might fall over") his defensive action was limited to his instructing the building contractor to remove only one major branch. He did say that he believed that if the branch were removed "it was less likely that the tree would fall over" but this belief is unsupported by any expert opinion and it still leaves the tree in existence despite the Defendant's belief that it was dangerous.

But in any event, faced with the fact of the Council's reasoned refusal of his reasoned application to remove the tree, the course of action which a reasonable person in the position of the Defendant would obviously have taken would be to discuss the matter with the Council and its servants and with his own experts. Yet there is no evidence that the Defendant took any of these actions or even considered taking such action. Rather, the evidence is that the Defendant, apparently ignoring the professional opinions, chose instead to act upon his own judgment as a layman in respect of such matters of arboreal safety and stability (although claiming a knowledge of engineering matters, by virtue of his training and practice as an orthopaedic surgeon).

In the circumstances that prevailed from July 2002 when he made his first application to the Council to remove the tree until the period between February and May 2003 when he instructed the building contractor to remove the major branch from the tree, the continuance of the Defendant's belief that the tree had become dangerous in the face of the unchanged and unchallenged outcome of the process seeking the Council's approval for the removal of the tree, was in my judgment plainly not a reasonably held belief. I accept that it was a layman's honest concern, but objectively considered it was not a reasonable belief.

For all of the foregoing reasons, I am satisfied beyond reasonable doubt that the Defendant's belief that the tree had become dangerous at the time that the offence charged was committed was not a reasonably held belief.

It follows that there is no relevant honest and reasonable mistake of fact in the present case to exculpate the Defendant from the liability created by proof of the offence as charged.

For the foregoing reasons, I find that the Prosecution has established beyond reasonable doubt the Defendant's guilt in respect of the offence charged.

I reserve the questions of sentence and costs with liberty to restore on five days' notice.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(2003) 124 LGERA 303

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Judgment (119 paragraphs)

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