Land and Environment Court of New South Wales CITATION : Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 2) [2008] NSWLEC 326 PROSECUTOR: Pittwater Council PARTIES : DEFENDANT: A1 Professional Tree Recycling Pty Ltd FILE NUMBER(S) : 50051 of 2008 CORAM: Biscoe J KEY ISSUES: Environmental Offences :- whether no case to answer - alleged unlawful clearing of bushland contrary to Pittwater Tree Preservation and Management Order 1996 - construction of the definition of "bushland" in the Order. Environmental Planning and Assessment Act 1979, s 125(1) LEGISLATION CITED: Environmental Planning and Assessment Model Provisions 1980, cl 8 Pittwater Local Environment Plan 1993, cl 6(1) Beckwith v The Queen [1976] HCA 55, (1976) 135 CLR 569 CASES CITED: Director General, Department of Land and Water Conservation v Bailey [2003] NSWCCA 361, (2003) 136 LGERA 242 May v O'Sullivan [1955] HCA 38, (1955) 92 CLR 654 DATES OF HEARING: 15 - 16 December 2008 EX TEMPORE JUDGMENT DATE : 16 December 2008 PROSECUTOR: Mr J Johnson SOLICITORS Grahame Jackson & Associates LEGAL REPRESENTATIVES: DEFENDANT: Mr T G Howard SOLICITORS Lawhouse Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 16 December 2008 50051 of 2008 PITTWATER COUNCIL v A1 PROFESSIONAL TREE RECYCLING PTY LIMITED (No 2) EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a prosecution for alleged unlawful clearing of bushland contrary to a council tree preservation order. At the end of the prosecution case the defendant, A1 Professional Tree Recycling Pty Limited, submitted that there was no case to answer. 2 The defendant pleaded not guilty to a charge that it committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979. Section 125(1) provides that where a council is authorised under the Act to forbid any thing to be done, and that thing is done, a person offending against the prohibition shall be guilty of an offence against the Act. The Pittwater Tree Preservation and Management Order 1996 (tree preservation order) was made by the council on 14 October 1996 pursuant to cl 6(1) of the Pittwater Local Environment Plan 1993 which adopted cl 8 of the Environmental Planning and Assessment Model Provisions 1980 subject to a minor modification. Clause 8 as modified provides: "8 Preservation of trees (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 and management order) and may, by like resolution, rescind or vary any such order. (2) A tree preservation and management 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 and management 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 and management 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 and management 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..." 3 The charge is that the defendant did, without obtaining the prior consent of the prosecutor, Pittwater Council, cut down, injure and wilfully destroy bushland on land at 2 Ingleside Road, Ingleside, within the Pittwater Local Government Area, being bushland to which the tree preservation order applied. 4 The tree preservation order provides: "3. Trees to which the Order applies This Order applies to: (a) any tree or shrub, whether endemic, exotic or introduced species, not being a cycad or mangrove which has (i) a height exceeding three (3) metres, or (ii) a trunk, bole or branch girth exceeding 0.5 metres or which has a combined girth or each of two or more trunks or boles exceeding 0.5 metres, or (iii) a branch canopy width exceeding five (5) metres; (b) any cycad or mangrove irrespective of dimensions; (c) any bushland. 4. Definitions In this order: "Bushland" means land on which there is vegetation which is either a remainder of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation. … 5. Prohibition Except as otherwise provided in this Order, a person shall not poison, ringbark, cut down, remove, injure, prune or wilfully destroy any tree, including bushland, except with the consent of Council under this Order and in accordance with any consent any conditions thereof." 5 There are two other references to "bushland" in the tree preservation order, in cll 6.1 and 7.1: "6. Consents 6.1 Public owned land including Council reserves/road reserves An application for a consent to poison, ringbark, cut down, remove, injure, prune or wilfully destroy a tree or trees shall be made on Council's Tree Preservation and Management Order Application. Only Council or its duly authorised servants or agents are permitted to carry out the poisoning, ringbarking, cutting down, removing, injuring, pruning or destroying of a tree or trees including bushland from the said public land. Council will only prune or remove trees for essential tree maintenance. Council will not consider applications for the removal of trees including bushland on public land solely for the purpose of improving views from properties in the locality. Any pruning for additional solar access will be required to be approved with the cost of these works being incurred by the applicant. 7 Exemptions 7.1 The owner of land being private property or any person with the consent in writing of that owner may, without the consent of Council, under this Order, poison, ringbark, cut down, remove, injure, prune or wilfully destroy a tree including bushland where the tree: (a) is dead, except in the case of large gums ( Eucalypt , Corymbia and Angophora ) that are potential habitat trees…" 6 The amended summons particularises the bushland the subject of the charge as bushland consisting mainly of dense shrubs and three species (specified in the amended summons) "representative of the structure and floristic characteristics of the natural vegetation". This picks up the second limb of the definition of "bushland" in the tree preservation order. The prosecution case was conducted on the different basis that the case fell within the first limb of the definition of "bushland". That case was based on the expert evidence of Mr Chris Wright, a former council officer who investigated the matter and reported to the council before the prosecution was instituted. Mr Wright's only evidence-in-chief on this aspect appeared in para 12 of his affidavit served shortly before the hearing, where he said: "In my opinion, the vegetation (except for the areas cleared on earlier occasions) which was cleared was a remainder of the natural vegetation of the land." 7 Mr Wright's evidence also indicated that the species of vegetation the subject of the charge were species of natural vegetation in the area. 8 Mr Wright's evidence in cross-examination and aerial photographs tendered in evidence on which he was cross-examined, establish that as at 1947 the vegetation on the subject land had been cleared. In light of the aerial photographs, Mr Wright appeared eventually to no longer adhere to the evidence in para 12 of his affidavit. It is not certain that the vegetation cleared as at 1947 was cleared by humans, but that is what the evidence suggests and I understood the prosecutor to accept that that is so. 9 The defendant's no case to answer submission is that, contrary to the prosecution case, this matter cannot fall within the first limb of the definition of "bushland" but can only fall within the second limb. Particular emphasis is placed on the word "altered" at the beginning of the second limb and the evidence that the land had been altered as at 1947. The prosecutor properly accepted that it would be unfair to the defendant for the prosecutor to switch its case at this late stage to the second limb. In my view, and this is common ground, "altered" in the second limb of the definition means altered by humans. However, the prosecutor submits that the first limb of the definition still applies because, although the vegetation was "altered" in 1947, by 2007 when the alleged offence occurred the vegetation on the land was the natural vegetation of the land within the meaning of the first limb. 10 In May v O'Sullivan [1955] HCA 38, (1955) 92 CLR 654 at 659 the High Court held that: "When, at close of the case for the prosecution, a submission is made that there is 'no case to answer', the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law." 11 The no case to answer submission turns on the construction of the definition of "bushland" in the tree preservation order. Its proper construction is a matter of some difficulty. In Director General, Department of Land and Water Conservation v Bailey [2003] NSWCCA 361, (2003) 136 LGERA 242 at [24]-[25] (CCA) Shaw J (Mason P and Hidden J) agreeing, held: "…The position was stated by the High Court in R v Adams (1935) 53 CLR 563 at 567-568 as follows: 'No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.' In my opinion, there would be no contradiction between an Adams construction and s 33 of the Interpretation Act 1987 (NSW) because to prefer the construction promoting the object and purpose of a statute is to apply it according to its terms, noting that: 'If conduct of a particular kind stands outside the language of a penal section, the fact that a court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits…" (citations omitted) 12 The Court of Criminal Appeal in Bailey did not refer to a High Court case which post-dated Adams, Beckwith v The Queen [1976] HCA 55, (1976) 135 CLR 569 where Gibbs held at 576: "The rule formerly accepted, that statues creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of the penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams ... The rule is perhaps one of last resort." 13 If it is necessary to do so I would apply that principle as a last resort. 14 As I have said, the word "altered" in the second limb of the definition of "bushland" in the tree preservation order should be construed as meaning altered by humans. Given the nature of the order, I accept the defendant's submission that "altered" in the second limb should be further construed as meaning altered in the context of urban planning. Thus it does not extend to alteration by Aborigines prior to white settlement, for example, by deliberate clearing of vegetation by fire. The first limb of the definition should, I think, be construed as concerned with pockets of natural vegetation that remain out of natural vegetation that has not been altered. 15 The evidence of clearing of vegetation from the land as at 1947 indicates that the vegetation had been altered by humans, or at least that there is a reasonable doubt as to whether it was altered by humans or by natural causes. Consequently, the first limb of the definition of bushland is inapplicable, or at least there is a reasonable doubt as to whether it is applicable. 16 For these reasons, I uphold the defendant's submission that there is no case to answer. The summons is dismissed. The exhibits may be returned. Costs are reserved. 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.