Reported Decision : 118 LGERA 264 Land and Environment Court of New South Wales CITATION : Holroyd City Council v Skyton Developments Pty Limted [2001] NSWLEC 259 PROSECUTOR Holroyd City Council PARTIES : DEFENDANT Skyton Developments Pty Limited FILE NUMBER(S) : 50070; 50071; 50072 of 2001 CORAM: Talbot J KEY ISSUES: Prosecution :- statement of essential legal ingredients of an offence. Environmental Planning and Assessment Act 1979 s 26, s 76A, s 76A(1)(b), s 125, s 125(1) LEGISLATION CITED: Holroyd Local Environmental Plan 1991 cl 18 Holroyd City Council Tree Preservation Order 2000, cl 4 Cameron v Lake Macquarie City Council (2000) 107 LGERA 308; Director of Public Prosecutions v United Telecasters Sydney Limited (1989 - 1990) 168 CLR 594; Ex parte Lovell; Re Buckley and Another (1938) 38 SR (NSW) 153 ; Hornsby Shire Council v Denise ("Densey") Clyne (Talbot J, NSWLEC, 29 October 1998, unreported); CASES CITED: Hornsby Shire Council v Winsloe (1998) 101 LGERA 117; John L. Proprietary Limited v The Attorney-General for the State of New South Wales (1987) 163 CLR 508; Meriton Apartments Pty Ltd v Ryde City Council (1998) 108 LGERA 352; Rao v Canterbury City Council (2000) 112 LGERA 360; Vines v Djordjevitch (1955) 91 CLR 512 DATES OF HEARING: 05/11/2001 DATE OF JUDGMENT: 11/16/2001 PROSECUTOR Mr T G Howard (Barrister) SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: DEFENDANT Mr M L Wright (Barrister) SOLICITORS Deacons Graham & James JUDGMENT: IN THE LAND AND Matter No. 50070 – 72 of 2001 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 16 November 2001 Holroyd City Council Applicant v Skyton Developments Pty Limited Respondent REASONS FOR JUDGMENT 1. Holroyd City Council ("the council") has commenced proceedings by way of summons in the class 5 jurisdiction of the Court, whereby the defendant company is charged with three separate offences. 2. In matter No 50071 of 2001 the defendant has been ordered to answer the charge that on or about 29 January 2001 at Westmead it committed an offence under s 125 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in that it did cut down and/or lop and/or injure and/or remove and/or wilfully destroy trees contrary to a prohibition contained in a Tree Preservation Order ("TPO") duly made by the council under the EP&A Act. 3. In matters No 50070 and No 50072 of 2001 the defendant is required to answer the charge that on or about 29 January 2001 at Westmead it committed an offence under s 76A of the EP&A Act by virtue of the operation of s 125 of that Act in that it carried out development on land for which development consent was required under the Holroyd Local Environmental Plan 1991 ("the Holroyd LEP") in a manner which contravenes a condition of the development consent granted by the council. The particulars contained in the summons in matters No 50070 and No 50072 of 2001 identify development consent No 2001/465 dated 9 January 2001 and conditions 23 and 25, respectively, of the development consent. 4. In each case the defendant has filed a notice of motion seeking the following orders:- 1. The summons' be struck out and the proceedings be dismissed on the grounds that the summons': (a) disclose no offence; (b) fail to state the essential legal ingredients of an offence under section 125(1) of the Environmental Planning and Assessment Act 1979; (c) are bad for uncertainty and duplicity. 2. The Applicant pay the Respondent's costs of the proceedings. 5. The issues that arise in matter No 50071 of 2001 are distinct from the common issues that arise in matters No 50070 and No 50072 of 2001. This is evident from the particulars furnished by the defendant in support of the notices of motion. 6. It is appropriate, therefore, that the Court deals separately with matter No 50071 of 2001. Background Facts 7. Clause 18 of the Holroyd LEP provides as follows:- (1) If 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 (a "tree preservation order") and may, by resolution, rescind or vary any such order, (2) A tree preservation order may prohibit the ringbarking, 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 City of Holroyd or any divisions of that City. (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 must not contravene or cause or permit a contravention of a tree preservation order. (6) A person does not contravene or cause or permit a contravention of a tree preservation order if the person establishes that the tree ringbarked, cut down, topped, lopped, removed, injured or wilfully destroyed was dying or dead or had become dangerous. (7) The power 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. (8) A tree preservation order made and in force in respect of the land to which this plan applies, immediately before the appointed day, shall be deemed to be a tree preservation order made in pursuance of this clause. 8. The subject TPO identifies the categories of a "tree" to which the order applies. Clause 4 of the TPO is relevant to the proceedings and provides as follows:- No person shall ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree without first obtaining the written consent of the Council of the City of Holroyd (hereinafter called "the Council"). 9. On 9 January 2001 the council determined a development application made by the defendant subject to the following conditions:- 23. Protective fencing is to be installed outside the dripline of each tree identified in the Arborists's report. This fencing is to be constructed of chainwire mesh 1.8m high, supported by steel stakes or piping. Removal of this fencing during construction work, may effect the Bonds or result in stop work orders being issued by Council to the applicant and builder. The trunks of these trees are to be protected by vertical timber boards, installed by a qualified arborist, to accepted horticultural and TAFE standards. 25. Council staff are to inspect all protective fencing for compliance with the conditions of consent PRIOR to commencement of any construction work or clearing of the site. Additional inspections may be carried out without prior notice throughout the construction and bond period. Matter No 50071 of 2001 10. It is convenient to set out the provisions of s 125(1) of the EP&A Act in full as follows:- 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 authorized 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. 11. Mr Wright, who appears for the defendant, argues that two essential legal ingredients have been omitted from the charge as follows:- (1) Whether what was done to the trees is a matter or thing forbidden to be done by or under the EP&A Act. (2) That the relevant conduct was without the written consent of the council. 12. In Hornsby Shire Council v Winsloe (1998) 101 LGERA 117 Bignold J considered whether there was an offence as formulated in the summons in terms of an offence against s 125 of the EP&A Act whereby the defendant cut down trees protected by the council's TPO created pursuant to cl 8 of the Hornsby LEP. His Honour recognised "the charge could have stated as a relevant "prohibition" that contained in s 76(2) which qualifies as a prohibition "by this Act", and possibly the prohibition contained in cl 8 of the LEP which may qualify as prohibition "under this Act", but it has not done so and in failing to do so, it has omitted an essential legal ingredient or element of the offence created by s 125(1) of the EPA Act" . His Honour formed this view as, in his opinion, the TPO is not to be regarded as a prohibition " under this Act " within the meaning of s 125(1). Rather, he said " it is a prohibition "under" the TPO made "under" the LEP made "under" the Act ". According to His Honour it followed " that the charge did not charge an offence under s 125(1) of the EPA Act because the relevant "prohibition" is not a prohibition "under this Act" within the meaning of that section ". 13. In Hornsby Shire Council v Denise ("Densey") Clyne (Talbot J, NSWLEC, 29 October 1998, unreported), I upheld a charge in respect of the same events considered by Bignold J in Winsloe on the basis that as the council was authorised by s 26 of the EP&A Act to make a TPO pursuant to the provisions of an LEP, the operation of the TPO and the LEP gave the council derived power to forbid the cutting down of trees under the provisions of the EP&A Act and, accordingly, a person may be charged with an offence against the Act under s 125(1). 14. The distinction between the applicable and relevant provisions in Winsloe and Clyne is that the Hornsby LEP did not contain a clause to the same effect as cl 18(5) of the Holroyd LEP. 15. Lloyd J appears to have expressed surprise that neither Bignold J nor I referred to a decision by him in Meriton Apartments Pty Ltd v Ryde City Council (1998) 108 LGERA 352 when he was seeking to distinguish Clyne and Winsloe in Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 at 313. Apart from both matters being class 1 proceedings, the distinction between the facts in Meriton and Cameron on the one hand and Winsloe and Clyne on the other is that in both of the former cases the environmental planning instrument contained a provision whereby a person who contravenes or causes or permits to be contravened a TPO shall be guilty of an offence. In the opinion of Lloyd J, the presence of the provision means that the TPO is "an act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument and is thus "development" as defined in s 4" . Lloyd J also referred to the expanded definition of "control" to support his conclusion. 16. There is no provision in the Holroyd LEP which is, in terms, the same or similar to the provision relied upon by Lloyd J in Meriton and Cameron. 17. In Clyne and Winsloe cl 8 of the Hornsby LEP provided that a person shall not carry out or permit or direct or cause any designated harm to any tree to which a TPO applies without the consent of the council. 18. Clause 18(5) of the Holroyd LEP set out above is in different terms again, namely that a person must not contravene a TPO. 19. In Clyne the charge referred to action "contrary to the provisions of a tree preservation order made pursuant to Clause 8 of the Hornsby Shire Local Environmental Plan 1994" . In Winsloe the summons identified actions of pruning and lopping trees "protected by Council's Tree Preservation Order created pursuant to the Hornsby Shire Council Environmental Plan 1994" . 20. The charge in the subject summons alleges that the action in respect of the trees was "contrary to a prohibition contained in a Tree Preservation Order" duly made by the council under the EP& A Act. 21. The source of the prohibition is to be found either in cl 18(5) of the Holroyd LEP or cl 4 of the TPO. 22. The defendant's counsel asserts that "[i] n any case where the summons relies upon a breach of a tree preservation order, it must identify the environmental planning instrument under which the tree preservation order was made as the source of the prohibition if it is to identify the essential legal ingredients of the offence under the second category of offence in s 125(1) EPA Act". 23. It is doubtful that the description of the offence is sufficiently stated to meet the expectation raised by Bignold J in Winsloe. However, in Rao v Canterbury City Council (2000) 112 LGERA 360, Mason P appeared to be satisfied that, provided the summons adverts to the offence-creating provisions (s 125) and the particular instrument taking effect under the Act, the omission to mention the provision giving mandatory effect to the requirement is no more fatal than the omission to mention a section of the Crimes Act 1900 making a particular offence a crime. 24. Austin J supported the President's view in Rao when he expressed the opinion that assuming there is relevant contravening conduct it is unnecessary to invoke s 76(2) of the EP&A Act in order to reach the conclusion that a defendant had offended against directions and prohibitions contained in conditions of consent. 25. The subject summons identifies the TPO made by the council under the EP& A Act. Consistent with the approach taken in Clyne, in my opinion, cl 4 of the TPO amounts to a direction by the council that something is forbidden to be done, namely the nominated actions in respect of trees without the written consent of the council. 26. The failure to make reference to s 26 of the EP&A Act or cl 18 of the Holroyd LEP does not prevail against a conclusion that the alleged actions of the defendant offended the prohibition contained in cl 4 of the TPO. There is no allegation that the prosecutor relies on cl 18(5) of the Holroyd LEP to identify the offence as a contravention of a TPO contrary to the LEP provision. 27. The stated factual ingredients of the actual offence are that the defendant did cut down and/or wilfully destroy trees contrary to a prohibition contained in a TPO. 28. The question is whether these are the essential factual ingredients ( Ex parte Lovell; Re Buckley and Another (1938) 38 SR (NSW) 153; John L. Proprietary Limited v The Attorney-General for the State of New South Wales (1987) 163 CLR 508). There is no reference to the written consent of the council. Mr Wright states that "whether a provision is part of a relevant prohibition or is exculpatory in character is a matter of construction of the particular enactment" . In Director of Public Prosecutions v United Telecasters Sydney Limited (1989 – 1990) 168 CLR 594 at 611, Toohey and McHugh JJ said: When a statute imposes an obligation which is the subject of a qualification, exception or proviso, the burden of proof concerning that qualification, exception or proviso turns on whether it is part of the total statement of the obligation. If it is, the onus in respect of the qualification, exception or proviso is on the party asserting a breach of the obligation. If it is not, the party relying on the qualification, exception or proviso must prove that he or she has complied with its terms. 29. In United Telecasters the relevant provision was construed to be "part of the total statement of the obligation" and the burden of proof rested with the prosecutor. Similarly, in Vines v Djordjevitch (1955) 91 CLR 512 at 521 the High Court held " [t] he substance of the proviso and its general tenor show that it means to impose a condition precedent to the cause of action. Accordingly the burden of proof lies on the plaintiff" . 30. The relevant clause has been identified as cl 4 of the TPO. If cl 4 operates only as a prohibition in the absence of council consent, as Mr Wright submits, the words "without first obtaining the written consent of the Council" are to be taken as "part of the total statement of the obligation" . It is when the whole amounts to a statement of the complete factual situation which must be found to exist, namely as in this case the ringbarking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree without first obtaining council's written consent, that the defendant incurs a liability under the provision (see Vines at 519). 31. In Winsloe , Bignold J held that the requirement for written consent was an essential legal ingredient of the offence and must be included in the charge. 32. As a matter of construction the Court finds that the prohibition exists only in the absence of the written consent of the council. Liability is incurred only if the prosecutor proves that there was no written consent. Accordingly, "first obtaining the written consent of the Council" is an essential legal ingredient of the offence in respect of which the prosecutor bears the onus of proof. 33. However, the charge states that the acts complained of were "contrary to a prohibition contained in" a TPO. The identification of that prohibition picks up the essential legal ingredient of the failure to first obtain consent. The Court is satisfied, therefore, that the charge as stated in the summons encapsulates the essential legal ingredients of the offence which it purports to identify. Matter No 50071 of 2001 – Uncertainty and Duplicity 34. Mr Wright notes by way of concession in his written submissions as follows:- It is conceded that the amendments proposed by the Prosecutor in its Notice of Motion sufficiently address the concerns of uncertainty and duplicity so as to identify the nature of the alleged acts provided that: _ the expression and/or is not used; and _ the Prosecutor makes clear whether or not in making allegations involving Skyton's servants or agents, it is relying upon section 55 of the LEC Act. Skyton is entitled to know whether it is charged as a principal or secondary offender. 35. In the Court's view, that is a proper concession to make in the circumstances and it is appropriate that the prosecutor be granted leave to file and serve an amended summons whereby the charge is amended to allege that the defendant "did remove trees" contrary to the prohibition contained in the TPO. Matters No 50070 and No 50072 of 2001 – The missing legal ingredients or elements 36. Each charge relevantly states:- …committed an offence under section 76A of the Environmental Planning & Assessment Act 1979, by virtue of the operation of s125 of that Act, in that it carried out development on land for which development consent was required under the Holroyd Local Environmental Plan 1991 in a manner which contravened a condition of the development consent granted by Holroyd City Council. 37. The defendant asserts that two essential legal ingredients are missing from each charge:- _ The matter or thing forbidden to be done; and _ Whether the prohibition (i.e. the forbidding) is "by or under the Act" 38. Mr Wright says it is not possible from a reading of the charges to identify either of these elements. 39. The Court agrees with the prosecutor that the gravamen of each alleged offence is the contravention of the prohibition in s 76A(1)(b) of the EP&A Act and the wording of each charge appropriately sets out the elements of s 76A(1)(b). 40. The charges identify the matter forbidden to be done as carrying out development for which development consent was required under the Holroyd LEP in a manner which contravened a condition of the development consent granted by the council. 41. The charges therefore, in the Court's view, convey the essential nub of the contraventions alleged ( Rao ). 42. The particularisation of the subject conditions in each case assists the defendant to understand the exact nature of the conduct alleged. However, the general nature of the alleged offence is clearly stated in each case and it is not necessary to rely on the particulars to appreciate the nature of the prohibition. The relevant prohibition is to be found in s 76A of the EP&A Act. It is precisely alleged that the offence occurred under s 76A by virtue of the operation of s 125. The "sense of each charge is perfectly clear" ( Rao at 365). It is not appropriate to strike down the charges as alleged in the summons in these cases. 43. The Court is satisfied that the reference in the summons to "a manner which contravened a condition of the development consent" relates relevantly and sufficiently to the words "development is carried out in accordance with the consent" used in s 76A(1)(b). 44. By comparison to what the Court of Criminal Appeal accepted in Rao as adequate the subject charges are, in my opinion, more explicit. Conclusion 45. The Court is satisfied that the essential legal ingredients of each of the three charges are sufficiently expressed. 46. Subject to giving leave for the prosecutor to file an amended summons in the form foreshadowed in matter No 50071 of 2000 each of the notices of motion are dismissed. 47. The defendant raises issues regarding duplicity and uncertainty arising from the particulars in matters No 50070 of 2001 and No 50072 of 2001. The Court agrees that the prosecutor should alleviate those concerns by clarifying its position. A further issue raised in submissions relates to the uncertainty of condition 25 itself. This is a matter properly to be resolved at the trial. 48. The issue of costs has not been addressed. It is appropriate that the question of costs be reserved at this stage, in any event. 49. The exhibits may be returned. 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