Land and Environment Court of New South Wales CITATION : Mosman Municipal Council v Keesing [2006] NSWLEC 836 PROSECUTOR: Mosman Municipal Council PARTIES : DEFENDANT: John Edward Keesing FILE NUMBER(S) : 50006 of 2005 CORAM: Lloyd J KEY ISSUES: Prosecution :- poisoning and injuring a tree - no valid tree preservation order at the date of the offence - summons dismissed LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 26 and 125(1) Mosman Local Environmental Plan 1998 cl 9 B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440; Beckwith v R (1976) 135 CLR 569; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; CASES CITED: ISPT Nominees Pty Limited v Chief Commissioner of State Revenue (2003) 59 NSWLR 196; Latoudis v Casey (1990) 170 CLR 534; Victorian Chamber of Manufacturers v The Commonwealth (1943) 67 CLR 347; Waugh v Kippen (1986) 160 CLR 156 DATES OF HEARING: 18 April 2006 EX TEMPORE JUDGMENT DATE : 04/18/2006 PROSECUTOR: J V Nicholas SC and S A Duggan (barrister) SOLICITORS: Pike Pike & Fenwick LEGAL REPRESENTATIVES: DEFENDANT: I M Barker QC and I J Hemmings (barrister) SOLICITORS: Martin Bell & Co JUDGMENT: - 6 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Tuesday,18 April 2006 LEC No. 50006 of 2005 MOSMAN MUNICIPAL COUNCIL v KEESING [2006] NSWLEC 836 EX TEMPORE JUDGMENT 1 HIS HONOUR: The defendant, John Edward Keesing, is charged with an offence that on or about 25 March 2004 at Mosman in the State of New South Wales, he committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) in that he did the following thing which he was forbidden to do by Mosman Municipal Council, being a council authorised under the Environmental Planning and Assessment Act to forbid that thing to be done, namely the defendant, without obtaining the prior written consent of the council, did poison and thereby injure a tree which action was forbidden by the council pursuant to a Tree Preservation Order duly made by the council under cl 9 of Mosman Local Environmental Plan 1998, pursuant to the council's power to protect and preserve trees under s 26 of the Environmental Planning and Assessment Act. 2 The defendant contends that there is no tree preservation order having any legal effect and neither was there any tree preservation order having any legal effect at the time of the alleged offence, namely 25 March 2004. 3 In order to rule on that contention, I should refer briefly to some facts. The land on which the tree was allegedly poisoned is subject to Mosman Local Environmental Plan 1998. That plan enables the council to make a tree preservation order. Clause 9 of Mosman Local Environmental Plan states: 9 How are trees preserved? (1) The Council, may, by resolution, make, revoke or amend a tree preservation order. (2) A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, pruning, removal, injury or wilful destruction of any tree except with the consent of the Council. (3) A tree preservation order, and any revocation or amendment of such an order does not have effect until it has been published in a newspaper circulating in the area of the Council. .... 4 There is no doubt that a provision such as cl 9 is one which is authorised by the Environmental Planning and Assessment Act, s 26(1)(e). 5 The evidence shows that on 14 March 2000, the council resolved to adopt a recommendation of its Manager Assets and Services, namely: That: A. Council revoke the previous Tree Preservation Order made under Mosman LEP [Local Environmental Plan] 1 for all land covered by Mosman LEP 1998. B Pursuant to the provisions of Mosman LEP 1998 and the Environmental Planning and Assessment Act (1979) council make a new Tree Preservation Order as outlined in the report and in accordance with the attachment to the report. The attachment to the report contains a document headed "Mosman Municipal Council Tree Preservation Order 2000". 6 On 11 January 2001, the council caused to be published in the Mosman Daily a document headed "Mosman Municipal Council Tree Preservation Order 2001". For the purposes of this judgment I set out by way of an annexure the whole of the terms of that notice. 7 In my opinion, the defendant's contention that there was no valid tree preservation order on 25 March 2004 is correct. It is correct for the following four reasons. 8 Firstly, by its resolution made on 14 March 2000, the council resolved to make a new tree preservation order "in accordance with the attachment" to the report of the Manager Assets and Services of the council. As I have noted the attachment to that report is headed "Mosman Municipal Council Tree Preservation Order 2000". A tree preservation order does not have effect until it has been published in a newspaper circulating in the area of the council. The notice published in the Mosman Daily is not that which was attached to the report of the Manager Assets and Services of the council which was the subject of the council's resolution. As I have noted it is headed "Mosman Municipal Council Tree Preservation Order 2001". That is a document which did not previously exist. 9 Secondly, the purported tree preservation order as published states under item 1: "A new Tree Preservation Order to be known as Mosman Tree Preservation Order 2001 is to be made pursuant to the provisions of Mosman Local Environmental Plan 1998" (the emphasis is mine). The instrument is thus prospective in its terms. 10 The prosecutor submits, however, that other provisions of the instrument are not prospective in their terms. Reference is made to item 2: "this order shall apply to all land throughout the Mosman Municipal Council area covered by Mosman Local Environmental Plan 1998 (including unzoned land); to item 3: "The order applies to ... " (and then there is a description of trees); to item 5, which is headed "Prohibitions": "This Tree Preservation Order prohibits the ringbarking, cutting down, topping, lopping, pruning, removing, injuring or wilful destruction of any (unless it is listed as being exempt) tree except with the prior written consent of council"; and to item 8, which is headed "Penalties": "A person who contravenes or causes or permits to be contravened this Order shall be guilty of an offence and liable to a penalty". In my opinion, however, those provisions are intended to apply once the tree preservation order has been made. The reader is entitled to infer that this is the form of a tree preservation order yet to be made. 11 Thirdly, a tree preservation order - and this is an important consideration - carries criminal sanctions if it is disobeyed. The Court must construe the order strictly, and in favour of the defendant since a breach may result in a criminal prosecution. There are many authorities for that proposition. It is a principle of interpretation which has been widely accepted in many Australian courts: see, for example, B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 at 452; Beckwith v R (1976) 135 CLR 569 at 576, subsequently approved by the High Court in Waugh v Kippen (1986) 160 CLR 156 at 162 to 164; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 629 to 630 and other authorities to a like effect. In construing the notice strictly and in accordance with this principle, I am reinforced in the view that it is prospective in its terms. 12 Fourthly, there was, it seems, a previous tree preservation order made under the previous planning instrument, Mosman Local Environmental Plan No. 1. However, that instrument, Mosman Local Environmental Plan No.1, was apparently repealed, as appears from cl 4 of the Mosman Local Environmental Plan 1998, except to the extent that it applied to land shown as "deferred matter" on the zoning map. There is no evidence to show that the land on which the subject tree stood was within that exception. That instrument having been repealed means that the previous tree preservation order made under that instrument also ceases to have effect. I refer to Victorian Chamber of Manufacturers v The Commonwealth (1943) 67 CLR 347 at 372 (omitting references): If the statute is repealed without a savings clause, then the by-laws made under it cease to have effect. Section 8 of the Acts Interpretation Act 1901–1941, which preserves rights accrued and liabilities incurred under repeal Acts, does not operate to make it possible to enforce, as if it were in continued operation, an Act or a by-law made under an Act after the Act has been repealed. 13 A holding to a similar effect was adopted by Barrett J in ISPT Nominees Pty Limited v Chief Commissioner of State Revenue (2003) 59 NSWLR 196; (2003) 53 ATR 527. 14 I therefore hold that there was no valid tree preservation order in existence as at 25 March 2004 within the Municipality of Mosman, being the date of this offence. BARKER QC: I ask your Honour to dismiss the summons. NICHOLAS SC: I don't think I can resist that your Honour. Your Honour may I raise one matter in relation to your Honour's judgment? Your Honour said during the judgment and I raise this with great respect, that there is no valid tree preservation order. My learned friend didn't submit that-- BARKER QC: Yes he did. It was the first thing he said. NICHOLAS SC: May I make this clear your Honour, we have dealt with the position as it stood at the date of the offence. The position today is affected by a tree preservation order that was adopted and advertised subsequently. We would respectfully submit that your Honour's judgment ought not to issue in terms that state or suggest that there is as at the date of judgment no valid tree preservation order for very obvious reasons. HIS HONOUR: Yes, I accept that. The judgment is limited to a finding that there was no valid tree preservation order as at 25 March 2004. NICHOLAS SC: May it please the court. HIS HONOUR: Anything else? BARKER QC: We do ask for costs your Honour. NICHOLAS SC: Your Honour I submit costs ought not to be ordered against the council. Here's a point that could have been taken as a threshold point. It was raised on the day of the hearing. Your Honour has some discretion and I would respectfully submit that costs ought not to be awarded to the defendant. 15 HIS HONOUR: In accordance with the principles explained by the High Court in Latoudis v Casey (1990) 170 CLR 534, it follows that there must be an order that the prosecutor pay the defendant's costs. The point was taken at the outset, at the commencement of this hearing, and that does not mean that the defendant should be deprived of his costs. 16 There will accordingly be an order that the prosecutor pay the defendant's costs. The formal orders are: (1) The summons is dismissed. (2) The prosecutor is to pay the defendant's costs. I hereby certify that the preceding 16 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate ANNEXURE [2006] NSWLEC 836 MOSMAN DAILY Thursday January 11 2001 MOSMAN [Image] COUNCIL NEWS [Image] AUTHORISED BY: V.H.R.May, General Manager, Civic Centre, Mosman Square, Mosman NSW 2088 Telephone 99784000 Fax 9978 4132 TREE PRESERVATION ORDER 2001 Notice is hereby given that under the provisions of the Mosman Local Environmental Plan No. 1 for all land covered by the Mosman Local Environmental Plan 1998 the Environmental Planning and Assessment Act 1979 Council has adopted on 14 March 2000 the following Tree Preservation Order. The previous Order, dated May 1995, as amended, is repealed. The new Tree Preservation Order 2001 applies to all land in Mosman, including Council owned or managed land. MOSMAN MUNICIPAL COUNCIL TREE PRESERVATION ORDER 2001 1. Citation Council considers it expedient for the purpose of securing and preserving existing amenity to revoke all tree preservation orders presently in force in the Mosman Municipal Council area, for the area covered by Mosman Local Environmental Plan 1998. A new Tree Preservation Order to be known as Mosman Tree Preservation Order 2001 is to be made pursuant to the provisions of Mosman Local Environmental Plan 1998. 2. Land to which this Order applies That this Order shall apply to all land throughout the Mosman Municipal Council area covered by Mosman Local Environmental Plan 1998 (including unzoned land). 3. Trees to which this Order applies The Order applies to: All types of trees located on privately owned land having a height exceeding five (5) metres and a trunk girth (circumference) exceeding 350mm measured one (1) metre above ground level, but excluding Privet, Oleander, Prunus, Umbrella trees, Cotoneaster, Hibiscus, Rubber trees, all citrus trees, mulberry trees, paw paw, loquat, wild olive, and Camphor Laurels that are less than 15 metres tall unless listed on Council's Significant Tree Register. All trees on publicly owned land. 4. Definitions Terms are defined in the Mosman Local Environment [sic] Plan 1998. "Council" means the Mosman Municipal Council or any officer or delegated authority authorised to act on behalf of the Council. 5. Prohibitions This Tree Preservation Order prohibits the ringbarking, cutting down, topping, lopping, pruning, removing, injuring or wilful destruction of any (unless listed as being exempt) tree except with the prior written consent of Council. 6. Consents 6.1 Trees on Private Land An application to Council for consent to prune or remove a tree must be made by the owner of the land, or by any person with the consent of the owner of the land, and must include a plan showing the number and location of all trees on the land to be pruned or removed. The application must contain a brief statement of the reason for removal or pruning as well as any other pertinent information which Council may require. For trees located on land under strata or company title, the application can only be made with the consent of the Owner's [sic] Corporation or Company. 6.1.1 Any consent issued under section 6.1 of this Order shall be subject to the condition that the consent will lapse if the works referred to in the consent have not been carried out within 12 months from the date of consent. 6.2 Trees on Public Land (including Council Reserves/Road Reserves) An application to Council for consent to prune or remove a tree shall be made on Council's Application Form for consent to prune or remove a tree. Only Council or its duly authorised servants or agents are permitted to carry out the pruning or removal of a tree or trees on any public land, including bushland. Council will only prune or remove trees on public land for essential tree maintenance or to allow for improved views from private property where deemed appropriate and where the health and viability of the subject tree or trees will not be compromised. Non-essential or cosmetic pruning for additional solar access or other reasons will be required to be approved by Council. All work will be conducted to standards and specifications as determined by the Council. The cost of all non-essential works will be the responsibility of the applicants. 6.2.1 Any consent issued under section 6.2 of this Order shall be subject to the condition that the consent will lapse if the works referred to in the consent have not been paid for and carried out within 12 months from the date of consent. 6.3 Matters for Consideration Council, in determining an application for tree pruning or removal, will have regard to: (i) The condition of the tree or trees with respect to disease, danger of falling, proximity to existing or proposed structures, interference with utility services, and interference with views and amenity to neighbours. (ii) Necessity for removal or pruning in order to construct improvements to the property the subject of the application. (iii) The effect of erosion, soil retention and the diversion or increased flow of surface waters. (iv) The number of trees existing in the neighbourhood, and the effect of tree removal or pruning on the amenity of the area. (v) The number of healthy trees that a given parcel of land will support. (vi) Is the dead tree providing habitat for fauna. When granting approval for the removal of a tree growing on a property, Council may stipulate that approval is granted for the removal of a tree on the basis that a replacement tree is planted in a suitable position on the property to the satisfaction of Council's Tree Preservation Officer. 6.4 Copy of Consent Any consent issued under this Order shall be subject to the condition that the works the subject of consent shall not be carried out unless the consent or a copy of the consent: (a) is present on the land on which the works are to be carried out prior to the commencement of and during the carrying out of the works; and (b) shall be produced by the person or persons carrying out the work forthwith on demand by Council's duly authorised officers, servants or agents to that officer, servant or agent. 7. Exemptions Pruning or removal of a tree may be undertaken without consent under this Order where the tree: (a) is of a species that has been declared a noxious plant under the Noxious Weeds Act 1993; (b) is of a species referred to as excluded in Clause 3 of this Order; (c) is any species of parasitic mistletoe or parasitic plant being removed from any part of a tree to ameliorate the effects upon the tree of such a parasite. 8. Penalties A person who contravenes or causes or permits to be contravened this Order shall be guilty of an offence and liable to a penalty. In addition, such person may also be required to replace the damaged or destroyed tree or trees, to maintain such trees to a mature growth and to provide security in order that such work is properly completed. A person found guilty of an offence for contravention of this Order may be subject to prosecution and penalties as determined by the appropriate court. 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.