Land and Environment Court of New South Wales CITATION : Coffs Harbour City Council v Michael John Hickey; Coffs Harbour City Council v Marcus Monroe Hickey [2004] NSWLEC 531 No. 50120 of 2003 PROSECUTOR: Coffs Harbour City Council DEFENDANT: Michael John Hickey PARTIES : No. 50034 of 2004 PROSECUTOR: Coffs Harbour City Council DEFENDANT: Marcus Monroe Hickey FILE NUMBER(S) : 50120 of 2003 and 50034 of 2004 CORAM: Lloyd J KEY ISSUES: Environmental Offences :- removal of trees by independent contractors without development consent - defendants not vicariously liable - defendants did not cause removal of trees LEGISLATION CITED: Alphacell Ltd v Woodward [1972] AC 824; Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; CASES CITED: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22; Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240; Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1; Stoneman v Lyons (1975) 133 CLR 550 DATES OF HEARING: 26/07/2004; 27/07/2004; 28/07/2004 and 29/07/2004 DATE OF JUDGMENT: 09/29/2004 PROSECUTOR: Mr T G Howard (barrister) SOLICITORS: MBT Lawyers LEGAL REPRESENTATIVES: DEFENDANT: Mr J W Conomos (barrister) SOLICITORS: Carneys Lawyers JUDGMENT: - 23 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Wednesday, 29 September 2004 LEC Nos. 50120 of 2003 & 50034 of 2004 COFFS HARBOUR CITY COUNCIL V MICHAEL JOHN HICKEY; COFFS HARBOUR CITY COUNCIL V MARCUS MONROE HICKEY [2004] NSWLEC 531 JUDGMENT Introduction 1 In proceedings No. 50120 of 2003, Mr Michael John Hickey is charged with the offence that between 15 June 2003 and 19 June 2003 he did cause trees to which a tree preservation order applied, to be removed on the land known as Lot 1 Arrawarra Road, Arrawarra ("the land"), being the land contained in Folio Identifier 1/534127, without development consent in breach of ss 76A and 125 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). Mr Marcus Munroe Hickey is Mr Michael Hickey's son and is charged with the same offence in proceedings No. 50034 of 2004. Both defendants have pleaded not guilty. By consent, these charges were heard concurrently. 2 Section 125(1) of the EP&A Act states: (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. 3 Within the terms of that provision, the prosecutor alleges that each defendant did what he was prohibited from doing under s 76A(1) of the Act, by carrying out development on the land without consent, contrary to the Coffs Harbour City Local Environmental Plan 2000 ("the LEP"). Clause 11(2) of the LEP states: (2) A person shall not carry out or permit or direct or cause any ringbarking, cutting down, topping, lopping, removing or wilful destruction of any tree or trees to which a tree preservation order applies without development consent. … 4 On 28 September 2000, the Council passed a resolution making a tree preservation order ("the TPO") under cl 11(1) of the LEP. The TPO was published on 11 October 2000 as required by cl 11(3) of the LEP, and was in force at the time of the alleged offences. The TPO applies to all Australian native trees within a 7A zone, with no minimum lot size, subject to the provision that: Any tree with a girth of less than 30 cm measured at 1.5 m above ground level is excluded from operation of this Tree Preservation Order. 5 The TPO also states: Where a tree becomes dangerous and poses an immediate threat to life or property, consent need not be obtained. 6 Mr Michael Hickey had engaged a contractor, Mr Kim Perkins, to carry out certain work on the land. On 18 and 19 June 2003, trees on the land were knocked down by a tractor driven by Mr Hune Temoana, an employee of Mr Perkins. Other trees were removed from the land by use of a chain saw. The trees were in excess of 30 cm in circumference. Although the charge against the defendants initially related to twenty two trees, it is now conceded by the prosecution that the charge only relates to twenty one trees. At the time of the alleged commission of the offence, the land was zoned partly Rural 1A and partly Environmental Protection 7A Habitat and Catchment Zone. The Evidence For the prosecution Mr Perkins 7 Mr Kim Perkins is the Director and Shareholder of Espedan Pty Ltd, the company that owns and operates the business known as Kim Perkins Earth Moving & Clearing Contractor. He has been involved in clearing work in the Coffs Harbour area for twenty five years and is aware of the council's requirements for the clearing of land. 8 Mr Perkins stated in his affidavit that he received a phone call from Mr Michael Hickey on 17 June 2003, during which a conversation to the following effect took place: I said "Kim Perkins" He said "You come recommended and I need some work done on a block, I need a tractor slasher" I said "Yeah we've got that" He said "I want the block cleaned up. I want to get rid of all the lantana and regrowth off the block" or words to that effect. 9 Mr Perkins also gave oral testimony that Mr Michael Hickey wanted the property slashed and cleaned up of all weeds and regrowth. He understood "weeds" to include lantana, bush and general regrowth. Although Mr Perkins understood the term regrowth to include small trees, he did not define this term in his conversations with either of the defendants. However, Mr Perkins gave oral testimony that he had a discussion with the first defendant concerning the heavy duty slasher to be used in cleaning up the site: Q. Are you able to say to the Court what was said between you and Michael Hickey as to the way you'd go about cleaning up that site? A. Yep, well the whole purpose of us being there was to slash. The equipment we use is heavy duty slasher. As I say, at the time that I'd spoke to him and also that I was on the site, I was only viewing the top of the block which was lighter in density if you like and I think at some stage we did discuss how the machine had a blade on it which it does, and if any of it was a bit too heavy to slash then we could push it together with a blade. 10 Mr Perkins also said that he received instructions from Mr Michael Hickey to not remove or damage the bigger trees on the site. Mr Perkins also recalled that during the telephone discussion with Mr Hickey he specifically asked him, "Is this OK with the Council", to which Mr Michael Hickey replied, "It is rural land and I just want it cleaned up". 11 On 18 June 2003, Mr Perkins attended the site at approximately 9:00 am. He met with Mr Marcus Hickey and stated that he had a conversation with him to the following effect: I said: "Hi I'm Kim Perkins" He said: "Hi I'm Mark" I said: "Is this it, what do you want done?" Mark Hickey put his hand up and gestured and He said: "That's the area I want cleaned up". 12 Mr Perkins stated that his operator, Mr Temoana, worked on the property from 18 June 2003 to about lunchtime on 19 June 2003. Mr Temoana 13 Mr Hune Temoana is an employee of Mr Perkins' company and stated to his recollection that he worked on the property on 16 and 17 June 2003. He recalled that he met Mr Marcus Hickey on the property at about 7am on the first day and that he walked around the property with him, Mr Marcus Hickey indicating the area he wanted slashed and cleared. Mr Temoana stated that Mr Marcus Hickey pointed to an area and said words to the effect: You will slash this paddock, clear around all the sheds that are there, all the lantana and all the rubbish and clear all the stuff right back to the boundary fence. 14 Mr Temoana observed that the area to which Mr Marcus Hickey pointed contained regrowth, including trees such as silky oaks, lantana and other rubbish. He states that his instructions were to clear and slash all of the rubbish and regrowth he could find on the property. Mr Temoana used the slasher on the tractor to clear the undergrowth and ground cover, and used the dozer blade on the front of the tractor to push over trees into piles. These trees included dead trees and also standing trees near the fence line. Mr Marcus Hickey approached Mr Temoana while he was working on the southern boundary of the property, an area in which there was a lot of rubbish. Mr Temoana stated that Mr Marcus Hickey pointed to the southern area of the property and asked him to "clear all that around the boundary" and also warned him to be careful of the old fence in that area. Mr Marcus Hickey did not specifically tell Mr Temoana to cut down or knock down any trees on the property. 15 Mr Temoana recollected that Mr Marcus Hickey introduced him to Mr Michael Hickey on the afternoon of 16 June 2003. He also said that neither of the defendants told him to stop clearing and neither said that there was anything wrong with the work he had done. 16 In his affidavit, Mr Temoana stated that Mr Mark Standing, an operator employed by Mr Perkins, took over from between 1:30 pm and 2:30 pm on the second day. Mr Brooks 17 Mr David Robert Brooks, Senior Ranger Co-Ordinator for the prosecutor, gave evidence that Mr Shepherd, another council officer, requested him to conduct an interview with Mr Michael Hickey. The meeting took place at 12:30 pm on 1 July 2003 at the council's offices and was attended by Mr Brooks, Mr Shepherd, and by Mr Michael Hickey and his assistant, Mrs Everington. The interview was not recorded due to the unavailability of a sound recording device. In the early stages of the interview, Mr Brooks administered a caution to Mr Hickey. During the interview, Mr Hickey indicated that he was not aware of the 7A zoning at the time of purchasing his property. Mr Brooks said that when he questioned Mr Michael Hickey in relation to the work on the land, he responded as follows: Mr Hickey said: "I engaged the contractor by phone to slash the block and clean it up." Mr Hickey said: "We were only doing the work to clean the property up and get rid of the lantana." 18 At the close of the interview, Mr Brooks and Mr Hickey resolved to meet on the property that afternoon with Mr Graham, another council officer. Mr Brooks states in his affidavit that he attended the property that afternoon, together with Mr Graham, Mr Holmes and Mr Shepherd. While on the property that afternoon, Mr Brooks said that he had the following conversation with Mr Hickey: I said: "Well after looking at the photo and what you can see here as being cleared do you agree that clearing has taken place within the 7A zone as indicated on the photo?" Mr Hickey said: "Yes." I said: "Do you agree that the trees that you see in the piles would have been trees removed from within the 7A zone as indicated on the photo?" Mr Hickey said: "Yes but it's a big mistake." I said: "Do you agree that the clearing here has taken place within 50 metres of the creek?" Mr Hickey walked over to the chain link fence got a foothold and pulled himself up on the fence and looked towards the creek. He got back down and said "Ah, yeah this has been nothing more than a big mistake, I'm sorry about this". I said: "Finally do you agree that the trees we are looking at in the piles are Australian native trees, in that they are "She Oak"." Mr Hickey said: "Yes" 19 In cross-examination, Mr Brooks stated that the oral and affidavit testimony concerning these meetings with Mr Hickey was prepared and given based on notes made shortly after the meetings. Mr Maher 20 Mr Ian Robert Maher is a director of Smyth Maher and Associates Pty Ltd, a firm of town planners and development advisors, and has been practising in the Coffs Harbour area for twenty years. After an initial meeting in about March 2003, Mr Michael Hickey engaged Mr Maher to prepare conceptual layouts of possible development of the land and to pursue rezoning options. The company prepared three plans labelled options 1, 2 and 3 respectively, all of which involved development on land within the 7A zone. On 24 April 2003, Mr Maher sent Mr Michael Hickey a facsimile indicating the requirements for a rezoning application and attaching a plan indicating the extent of land zoned 7A. In June 2003, Mr Maher sent a letter to council, and various other authorities, requesting a response to his client's intention to apply for rezoning of the 7A land. Following the receipt of feedback from these authorities, which highlighted the difficulties with the proposed rezoning, Mr Maher prepared a further plan, option 4, which did not involve a rezoning of the 7A land. In the early stages of the consultation, Mr Michael Hickey had provided Mr Maher with a similar plan, which had been prepared by another firm and also did not involve rezoning of the 7A land and which was confined to the 1A zone. Mr Shepherd 21 Mr Paul Matthew Shepherd, an Environmental Officer of the prosecutor, said that he received a telephone complaint on 20 June 2003 about the activities on the site. He attended the property after first discussing the matter with another officer of the council, Mr Tony Blue, in relation to the letter from Smyth Maher & Associates concerning the proposed rezoning application. He observed disturbance to the site, mostly flattened paperbark trees, and a tractor knocking over trees adjacent to the fence line in the south west corner of the property. In particular, he observed the tractor fall a large Banksia tree within the 7A zone. Mr Shepherd saw several stockpiles on the property containing native tree species. On 30 June 2003, he attended the site again and undertook a survey of the girth measurements of the trees that had been felled or flattened within the 7A zone. Mr Shepherd recorded twenty two native trees measuring in excess of 30 cm in circumference at a point 1.5 metres above the root base. The species of these trees included Swamp Oak, Small-leaved Paperbark, Banksia and Eucalyptus. Mr Shepherd also gave both oral and affidavit evidence that he observed a further twelve to fifteen felled native trees of girth in excess of 30 cm in the stockpiles in the 7A zone, which were not measured due to time and accessibility constraints. 22 On 1 July 2003, Mr Shepherd and Mr Brooks interviewed Mr Michael Hickey at the council's chambers. Mr Shepherd said that he asked a few questions during the meeting and also took some notes, including a statement by Mr Hickey of words to the effect of, "The contractors are not to blame". He also stated that the meeting was not recorded by a sound recording device. 23 Mr Shepherd said that he did not attend the first defendant's property on the afternoon of 1 July 2003. Mr Knock 24 Mr Peter Douglas Knock is an Environmental Officer employed by the council. Accordingly to his affidavit he attended the property on 27 June 2003 with Mr Shepherd and observed areas that had been slashed, including numerous trees that had been slashed and pushed up into piles. The species of these trees included Paper Bark, Cheese Tree and Swamp Oak. Whilst on the site, he conducted a Global Positioning System (GPS) survey to assess the extent of the vegetation clearance and prepare a photomap. 25 On 3 July 2003, Mr Knock attended the property again together with Mr Graham and Mr Shepherd and undertook a targeted GPS survey of native trees felled, which were accessible and which had a girth greater than 30 cm. This information was added to the photomap, which shows a total of seventeen native trees that were felled within the 7A zone. Mr Graham 26 Mr Mark Stewart Graham, a Terrestrial Ecologist for the council at the relevant time, stated in his affidavit and oral testimony that he attended the site on 3 July 2003 and observed a large number of trees that had been cleared from the northwestern boundary of the property. The species of these trees included Sandpaper Fig, Coastal Wattle, Water Gum, Swamp Oak, Swamp Mahogany, Cheese Tree, Blue Lilly Pilly, Rough Barked Geebung and Old Man Banksia. Mr Graham also observed trees that had been felled and pushed up into piles. Among the species of those trees were Paper Bark, Swamp Oak and Cheese Tree. Whilst measuring the trees, Mr Graham noticed a number of tractor tyre imprints in the surrounding soil and observed that vegetation in the area had been flattened consistent with a tractor blade. In particular, Mr Graham perceived markings on the trunk of a felled Cheese Tree, which indicated damage by a tractor or bulldozer blade. 27 Mr Graham said that he also attended the site on 1 July 2003, and that Mr Shepherd was not present on that occasion. Whilst on site that day, Mr Graham informed Mr Michael Hickey that three types of vegetation had been removed from the property: littoral rainforest, swamp forest and heathland communities. Mr Gregg 28 Mr Colin Gregg, the Public Officer of the council, stated in his affidavit that there is no record of any development consent that was current and in force for the property from 1 June 2003 to 3 July 2003. For the defendants Mr Warren 29 Mr James Victor Warren, an environmental consultant, visited the site on 4 March 2004. In his statement of evidence, Mr Warren states that his first impression of the property was that of grazing property, in that it was highly cleared and disturbed in the eastern and southern portions. He undertook an inspection of the fallen trees as recorded by Mr Graham. Mr Warren observed that one of the trees was located within 30 cm of a shed on the property and had been cut a short distance from its base. The roots of the tree were growing underneath the shed and Mr Warren stated that the trees would have damaged the structure of the shed in the future. 30 Mr Warren also observed another two trees that had been cut down, rather than pushed over. Additionally, Mr Warren referred to a number of the trees that had been pushed over as regrowth. Although he gave oral testimony that the term regrowth was not well understood, Mr Warren also stated that neither Mr Michael Hickey nor his solicitors sought clarification of this term. 31 Mr Warren observed dense lantana infestations on the site and the signs of lantana clearance after slashing. His statement of evidence asserts that the main objective of the work on the site appeared to be to the clearance of weeds. Mr Michael Hickey 32 Mr Michael John Hickey contacted Mr Perkins by telephone on 17 June 2003. He said that he told Mr Perkins that he had been referred to him and informed him that his Arrawarra property was in a disgraceful state of weed infestation, particularly lantana and regrowth, and that Mr Perkins replied, "Well that's exactly the type of work we do". In his oral testimony, Mr Michael Hickey made further statements concerning his conversation with Mr Perkins: Q. Would you tell us what you said sir? A. In the end we came down to the subject of money, which you'd expect, per hourly rate we agreed on. Mr Perkins said to me, "Is the area okay to deal with Council?", words to that effect. And I believe I replied, "Yes", that it would be fine. It was an essentially environmental clean up we were doing and there was a massive infestation of lantana. I recall him saying that he knew that because he'd visited the property. He knew the property. He said he'd gone down there at some time for the power company. Q. At any rate was there an agreement made as to when the work would be done? A. He said he had a man working in the general area and he was finishing a job and he could put him on it. He said he was a highly experienced man, that's one of the things that did come out. Mr Perkins said to me – he said, "We like to be careful of trees over 300". I remember that term 300. I took it to mean that he was talking about diameter, but I can't recall. He – I said, "With some of that regrowth, is it dangerous to drive the tractor in terms of branches that stick out and so forth?" and Mr Perkins said, "The driver is in a shielded cabin for that very reason". He said, "One of the problems with him being in a cabin, you've got to understand Mr Hickey, is that we can't estimate - we can only estimate the width of the trees", but he said, "We've never had a problem. We do this sort of work all the time. The driver has got a pretty good eye." And I said, "Well" - I remember saying to him, "That is why I've rung you, because you've got a reputation of expertise in this kind of work and obviously I'm getting experience". 33 In cross-examination, Mr Michael Hickey made further statements concerning his discussions with Mr Perkins: Q. Is it your position before the Court today that the contractors went beyond what you instructed them to do? A. That's a good question. It's a function of an interpretation of what I instructed them to do. In my discussions with Mr Perkins, he stressed the importance of judgment of the size of any saplings that they came across in trying to get the lantana out, and said they would do their best to estimate. I wouldn't say they exceeded their own expectations, their own standards. They do this kind of work. They have said that. They have given that in evidence. 34 Under cross-examination, Mr Michael Hickey was asked about his understanding of the term regrowth: Q. Can I take it by your answer to that question that you knew that some saplings would be removed during the operation that Mr Perkins was going to undertake? A. He had been to the property himself before and he told me that he observed that the lantana was tangled up with everything, and sometimes you can't make an omelette without scrambling the eggs. My words. The lantana was so scrambled up that certainly regrowth would get tangled up with the lantana and go with it. … Q. So the saplings which you understood Mr Perkins was going to remove, albeit he was going to make some judgment about the size were what you are referring to as regrowth? A. Yes, that would be included in the heading of regrowth, yes, as somebody said today, the lantana is regrowth too, so there is all different kinds of regrowth there. … 35 On the same day Mr Michael Hickey telephoned his son and requested him to attend the site as he was a volunteer fire fighter who understood First Aid and it would be "a gesture" to have him there should his assistance be needed. Mr Michael Hickey, however, told his son that he would not be in charge of the job, and that Mr Perkins was in charge of the job. He told him that the person hired to do the job was a valued expert in this area of work, that they were to rely on him completely and said specifically, "You're not to interfere, give orders. I'm not asking you to do that. It would be like teaching your grandmother to suck eggs". 36 On 18 June 2003, Mr Marcus Hickey went to the land. During the day he telephoned his father on approximately five occasions. On one particular call the son passed the phone to Mr Perkins. Mr Michael Hickey testified that in the ensuing conversation he told Mr Perkins, "Take care of the trees. Take good care of the precious trees." Later that day, Mr Michael Hickey attended the site with Ms Michaela Harley. Whilst on site, he was introduced to Mr Temoana and said to him, "Take care of the trees". Whilst on site Mr Michael Hickey observed the saplings in the piles. However, Mr Michael Hickey said that he observed no problems with the work being done nor did he communicate any dissatisfaction to Mr Temoana. 37 On 20 June 2003, both Mr Shepherd and Mr Perkins contacted Mr Michael Hickey to inform him that work had been stopped on the property. Mr Graham also contacted him and requested to meet him on site at 2:00 pm the following day. On the following morning, Mr Shepherd telephoned Mr Michael Hickey and requested him to attend a meeting at the council chambers that morning instead of meeting Mr Graham on site. During the resulting meeting with Mr Brooks and Mr Shepherd, Mr Michael Hickey observed a tape recorder on the desk that was switched on. He also observed that Mr Shepherd was the primary person asking the questions. Mr Michael Hickey requested that the meeting on site still take place that afternoon, to which the council officers consented. 38 Mr Michael Hickey met on site Mr Shepherd, Mr Graham and other council officers, who were later joined by Mr Brooks. He said that during this time Mr Graham pointed to an area of vegetation and said, "What you have destroyed here will take a thousand years to replace. This is what is called littoral rainforest." Mr Shepherd asked Mr Hickey to explain a stump near where the lantana had been cleared from the fence line. Mr Hickey said that after inspecting the stump, he said that he didn't know anything about it, stating, "I think there's been a big mistake here. If I made it, let's do something about it." Whilst on site, Mr Michael Hickey observed that the piles either side of the power lines were stumps of what he refers to as "saplings and branches tangled in lantana and weeds". 39 In his oral evidence Mr Michael Hickey said that he obtained a document entitled "Factsheet No. 5 Native Vegetation Conservation Act" from the Department of Land and Water Conservation. That document states that the following clearing is permissible without development consent: rural structures – minimal clearing of native vegetation if it is necessary for the construction, operation and maintenance of farm structures (for instance farm dams, tracks, bores, windmills, fences, fence lines, stockyards, loading ramps, sheds). 40 Mr Michael Hickey said that he requested his son to take along a chainsaw, gloves, first aid kit and the like for ensuring the safety of the worker and to assist in conserving the structures and fences on the site. 41 In his oral evidence concerning the plans prepared by Mr Maher, Mr Hickey said that the letters were sent to the authorities without his knowledge or permission. Mr Hickey said that he indicated to Mr Maher in May 2003 that he did not want the 7A zoning altered at all. Moreover, he said that the option 4 plan was prepared prior to Mr Maher sending the letters. 42 Mr Hickey also acknowledged that he was aware of the 7A environmental zone when he purchased the property and when he consulted Mr Maher, but that he could not determine its location. Mr Marcus Hickey 43 Mr Marcus Monroe Hickey said that he attended the property in June 2003 to be a token presence as requested by his father. He received instructions on the telephone from Mr Michael Hickey to take a first aid kit, and heavy boots and clothing to try and clean up the rubbish on the property, including dumped car bodies. Mr Michael Hickey also told his son not to interfere with the work of the contractors as they had already been given instructions. Mr Marcus Hickey said that he was to contact his father if the contractors were to ask him any questions regarding the work, which he did on approximately six occasions for various reasons. He denies instructing the contractor to clear anything on the property. 44 Mr Marcus Hickey took a chainsaw to the site, in accordance with his father's instructions, for attending to any trees that might be interfering with any buildings or infrastructure. He used the chainsaw to cut down four trees on the property. He said that one of these trees was a Sandpaper Fig, which was lifting up the concrete slab of the piggery shed and had already damaged both the side and the roof of the shed. Mr Marcus Hickey stated that he cut down three trees within a metre of the fence line, which he described as small sapling regrowth trees. He stated that these trees had been bumped by the tractor and were tilting towards the chain-mail fence. 45 Whilst on site, Mr Hickey observed that the lantana infestation on the site was quite extensive such that tackling it by hand would have been "quite futile and very, very costly". However, he said that removal of the lantana by hand might have been appropriate in another area with a large number of big trees. He also observed that the piles of vegetation on the site included weed, lantana, small regrowth saplings, dead trees and rubbish. 46 Mr Marcus Hickey also recalled attending an earlier meeting between his father and Mr Treadwell of the council. He said that they discussed sewerage and zonings relating to the property in relation to the Option 4 plan. Mr Marcus Hickey was also present at one of his father's meetings with Mr Maher, and recalled his father telling Mr Maher that he did not wish to interfere with zone 7A in any future plans or submissions relating to the property. Findings of Fact 47 Before applying the law I make the following findings of fact derived from the totality of the evidence described above. Mr Perkins and his employees were clearly independent contractors. Mr Michael Hickey had sought out and relied on Kim Perkins Earth Moving & Clearing Contractor for his expertise in this particular field. Mr Michael Hickey gave Mr Perkins instructions to clean the property of weeds, lantana and regrowth. He did not instruct Mr Perkins to remove trees in any express terms. At no stage did the independent contractors seek to clarify the defendants' understanding of the term regrowth. Mr Perkins or his tractor operators were to estimate the size of trees in the course of clearing which he was to undertake, noting that they were to be careful of trees over 300 mm in diameter. Mr Marcus Hickey did not give the contractors any instructions concerning the work on the property. He acted as a mere conduit between his father and the contractors regarding any questions that arose. The employees of Mr Perkins, Mr Hune Temoana and Mr Mark Standing, used a tractor to fell seventeen trees on the property within the 7A zone. Mr Marcus Hickey personally cut down four trees with a chainsaw within the 7A zone when it was apparent to him that the trees had become dangerous or posed an immediate threat to property, being a shed and a chain-link fence. Consideration Is either defendant vicariously liable for the actions of Mr Perkins or his employees? 48 A person who engages an independent contractor or subcontractor will not usually be vicariously liable for the contractor's acts or omissions: Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48. Two leading authorities in this Court helpfully summarise the law of vicarious liability in relation to independent contractors. These are Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240. As these cases show, however, the question of whether a principal may be vicariously liable for the particular act of an independent contractor must be considered in light of the circumstances of the individual case. 49 In McConnell Dowell, Pearlman J stated that a principal will be held vicariously liable for the actions of a contractor where the principal exercises sufficient control over the contractor. Her Honour set out the power of control test (at 262) as follows: That test involves a right to direct and control a course of action, in circumstances where the right is capable of exercise and is, or is likely to be, effective. It relates to the manner in which the independent contractor undertakes the course of action, that is, the way in which the tasks are to be performed or how they are to be carried out. 50 Similarly, in Multiplex I stated (at 59) that a principal could be vicariously liable for the acts of an independent contractor where the work was actually executed under the control and direction of the principal. In that case, however, I found that the defendant was not responsible for the actions of its subcontractor or sub-subcontractor relating to an oil spill, and said (at 62): Like the case of Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd [(1994) 83 LGERA 51], the evidence in this case suggests that the defendant did not effect any direct or real control over the manner in which the work which led to the oil spill was undertaken, neither does the evidence suggest that the defendant exercised control or direction over the subcontractor or sub-subcontractor. Like the defendant in Environment Protection Authority v Munters Ltd [(1998) 98 LGERA 279], the evidence in this case suggests that the directions given by the defendant were in relation to what should be done but not how the work should be carried out; the employees of Moltoni were not supervised by the defendant; and Moltoni's employees took their instructions from either Mr Blair or from employees of McConnell Dowell. 51 In the present case, Mr Michael Hickey gave Mr Perkins instructions concerning what work he wanted done on his property, that is, to clean the property of weeds, lantana and regrowth. Although he made enquiries of the means that would be used to carry out this work, he did not instruct Mr Perkins as to how the work should be carried out. Mr Michael Hickey sought out Mr Perkins based on recommendations concerning his expertise and was relying on this knowledge and expertise in requesting him to do the work. Even if the defendants had a right to direct and control the manner of the work, they did not exercise this right. They did not have any expertise in the area. Moreover, Mr Michael Hickey's ability to exercise such a right was severely restricted since he was absent from the site when the bulk of the work was being done. Neither defendant was involved in supervising the work of the contractor's employees. Although Mr Marcus Hickey was on site on 18 June 2003, he was not there in the capacity of supervisor. He was merely present as a conduit between his father and the workers should any questions arise. Although Mr Michael Hickey attended the site for two hours on the same day he did not engage in active supervision. His only substantive remarks to Mr Temoana were to be careful of the trees. Such conduct is consistent with the reliance by the defendants on the contractors' skill and expertise as to how the work was to be carried out. I am not satisfied that the defendants exercised any direct or real control over the manner in which the work was performed. The defendants are not vicariously liable under this test. Does the conduct of either defendant fall within the exceptions to vicarious liability? 52 There are two exceptions to the general rule that a principal is not vicariously liable for the acts of an independent contractor. The first of these exceptions is relevant and provides that a principal may be vicariously liable where he or she directly authorises the particular conduct: McConnell Dowell at 262; Multiplex at 59; Stoneman v Lyons (1975) 133 CLR 550. In Stoneman v Lyons, Mason J (at 573, Stephen J concurring) states that the offensive act will be the act of the independent contractor unless the defendant orders the contractor: (a) to do the act which constitutes the offence; (b) to do some act which comprises that act; or (c) to do some act which leads by all physical necessity to the offence. 53 Moreover in McConnell Dowell, Pearlman J stated (at 265) that the orders of the principal must give rise to more than a mere risk that the act comprising the offence will occur. This means that the felling of the trees would need to be a necessary result of the authorised conduct. 54 The prosecutor submitted that in directly ordering the removal of regrowth, the defendants directly authorised the felling of the saplings in breach of the tree preservation order. Neither defendant expressly instructed the contractors to fell any trees on the property. In fact, Mr Michael Hickey instructed the contractors to be careful of the trees. There was no direction to do the act that comprised the offence, or to do some act which comprised that act, or to do some act which necessarily led to the offence. Although Mr Michael Hickey instructed the contractors to clear the weeds, lantana and regrowth, I am not satisfied that this constituted a direct authority to cut down the trees in question. It was not an instruction to do an act that comprised the felling of the trees. At no stage did any of the contractors clarify the term regrowth with the defendants. On several occasions, Mr Perkins gave assurances to Mr Michael Hickey of his company's expertise in the area. For example Mr Perkins said, "We've never had a problem. We do this sort of work all the time. The driver has got a pretty good eye". Mr Hickey also said that Mr Perkins informed him, "We like to be careful of trees over 300". This statement was not put to Mr Perkins in cross-examination and I cannot attach much weight to it. Notwithstanding this, there is sufficient evidence to show that Mr Michael Hickey was relying on the expertise of Mr Perkins and his employees to select which regrowth to clear from the property. Similarly, there is a possibility that Mr Michael Hickey was relying on the knowledge of Mr Perkins and his employees concerning the girth of the trees. Accordingly, I am not satisfied beyond a reasonable doubt that Mr Michael Hickey's directions comprised an order to do an act that comprised the felling of the particular trees in question. For the same reasons, I am also not satisfied that his directions comprised an order or direction to do an act that would lead by all physical necessity to the felling of the trees. This is especially so in light of Mr Michael Hickey's reliance on the experience and expertise of the contractors. 55 Mr Marcus Hickey did not issue instructions to the contractors but merely acted as a conduit for any queries. As such he did not give the contractors any orders or directions, and therefore, he could not either directly or indirectly have authorised the felling of the trees. Did either defendant cause the removal of the trees? 56 There are two matters to be considered in relation to this question: the felling of seventeen trees by the contractors and the four trees cut down by Mr Marcus Hickey. I shall consider each of these in turn. The felling of seventeen trees 57 The prosecutor submitted that the defendants caused the removal of the trees by their instructions to the contractors and their failure to act after observing that some of the trees had been felled. In particular, the prosecutor relies on Alphacell Ltd v Woodward [1972] AC 824, where the House of Lords held that the defendant caused the pollution of waters. In that case, however, the defendant was the sole cause of the chain of events and was in control of everything within its works. More importantly, there was no intervention by a third party in that case. 58 Multiplex involved facts that are more closely related to those in the present proceedings. In that case I considered whether a principal caused or permitted the pollution of waters, where the principal had engaged independent contractors to carry out certain works but had not supervised the manner and method of the work being done. I examined and applied the relevant authorities (at 48-55), which may be relevantly summarised as follows: · "causing" should be given its common sense meaning: Alphacell at 834, 847; · a person causes a result where he or she intends to secure a particular outcome and does an act to bring about that result: Alphacell at 839; · a person causes a result where he or she deliberately and intentionally does an act which naturally produces a certain outcome: Alphacell at 839; · the defendant must engage in a positive act to "cause" something to occur and this act need not be an immediate cause: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 27-28; · the active involvement of a third party may, but does not necessarily, break the causal connection: Empress Car Co at 33, 36-37; · to determine whether the involvement of a third party excludes the defendant as a causative factor the court should consider whether the actions of the third party were an ordinary occurrence or something extraordinary. This is a question of fact: Empress Car Co at 36. 59 In applying these principles to the facts in Multiplex, I concluded that the defendant did not intentionally allow the pollution of waters. In particular, the expertise of the independent contractor was a reason why the independent contractor had been requested to do the work. In considering whether the defendant caused the pollution of waters, I stated (at 57): … I cannot be satisfied beyond a reasonable doubt that the defendant exercised control over the method and manner of the doing of the substructure works. The overall impression to be gained from the whole of the evidence is that control and responsibility for the substructure works had been passed to McConnell Dowell [the independent contractor]… 60 Accordingly, I came to the following conclusion (at 58): In short, the evidence does not satisfy me beyond a reasonable doubt that the defendant was in possession of the pollutant on premises which it controlled; that is to say, that the defendant was relatively in control of the site and of the manner in which the works were being performed thereon at the time. Neither am I satisfied beyond a reasonable doubt that the defendant caused the pollutant to be placed in a position where it fell or was likely to fall into the waters, within the principles discussed in pars 236 to 262 above. 61 In that case I held that the principal did not cause the pollution because it was not in control of the method or the manner of the works to be conducted. Rather the principal had entrusted the work to the independent contractors who possessed the relevant skill and expertise to conduct the work. Moreover, the principal had not given instructions or directions beyond the contract and did not supervise the works. (I note that in Multiplex a notice of appeal was filed but the appeal was subsequently discontinued.) 62 Similarly, in this case, Mr Michael Hickey entrusted the work to Mr Perkins and his employees based on their skill and expertise in this particular area. As I noted earlier, recommendations from other persons about the contractor and assurances from Mr Perkins himself concerning his employees' abilities reinforced this reliance. Although Mr Michael Hickey knew what equipment might be used, he did not purport to direct or control the method or manner in which the work would be carried out. Mr Michael Hickey cannot be said to have supervised the work. He was only present on the site for a little over two hours, during which time he was also engaged in other activities on the site. Although Mr Marcus Hickey was present on the site for most of the day, he took little notice of the work and was under strict instructions not to interfere with the contractors. As such, he did not seek to direct or control how the work was carried out or to supervise what was done. 63 The instructions given by Mr Michael Hickey are the only positive act by which the defendants could be said to have caused the felling of the trees. Those instructions were to clear weeds, lantana and regrowth. I am not satisfied beyond a reasonable doubt that those terms of engagement were intended to include the particular trees that were felled. As I mentioned earlier (at [54] above), there was no express instruction to interfere with any trees per se. While there is no doubt that Mr Hickey intended to convey the instructions he gave, it is not clear that those instructions would ordinarily and naturally lead to the felling of trees. This is particularly so given that Mr Perkins did not clarify his understanding of the instructions and Mr Hickey was relying on the expertise of the contractors. Mr Marcus Hickey gave no instructions to Mr Temoana. As such there is a reasonable doubt as to whether Mr Marcus Hickey issued any instructions at all which could constitute a positive act that caused the trees to be felled. Taking into account the whole of the circumstances I am not satisfied beyond a reasonable doubt that either defendant caused the trees to be felled by the contractors. The cutting down of four trees 64 Mr Marcus Hickey admitted using a chainsaw to cut down four trees on the property. He intentionally carried out a positive act with the intention of removing the trees. In doing so he caused the removal of those four trees. The trees were located within the 7A zone and subject to the TPO. Mr Marcus Hickey did not obtain development consent for their removal. The TPO, however, states: Where a tree becomes dangerous and poses an immediate threat to life or property, consent need not be obtained. 65 I am satisfied on the evidence of Mr Warren and Mr Marcus Hickey that the trees were dangerous and posed a threat to the existing infrastructure. The tree near the shed had become dangerous over time and was causing significant structural damage to the shed, such that it posed an immediate threat to property. The three trees near the fence became dangerous as a result of being bumped by the blade of the tractor. Consequently, those trees posed an immediate threat to the chain link fence and possibly to any person in their vicinity. Therefore, Mr Marcus Hickey did not need to obtain development consent prior to cutting down those trees and did not breach the TPO. Conclusion 66 I find that in neither case has the offence been proved beyond a reasonable doubt. The prosecutor, however, has requested that in the event of such a finding I state a case for the Court of Criminal Appeal as to: (i) whether I erred in law in not finding beyond a reasonable doubt that the defendants are vicariously liable for the acts of the contractor, and (ii) whether I erred in law in not finding beyond a reasonable doubt that the defendants caused the removal of the trees in question. 67 I direct the prosecutor to file and serve a draft stated case on or before Wednesday, 20 October 2004. Thereafter an appointment to settle the stated case is to be made by arrangement with my associate. I hereby certify that the preceding 67 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 29 September 2004 ********** 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.