Reported Decision : 172 LGERA 400 Land and Environment Court of New South Wales CITATION : Gosford City Council v Forrester [2010] NSWLEC 49 PROSECUTOR PARTIES : Gosford City Council DEFENDANT Forrester, John FILE NUMBER(S) : 50046 of 2009 CORAM: Pain J KEY ISSUES: PROSECUTION :- breach of tree preservation order - plea of not guilty - whether defence that tree had become dangerous established Environmental Planning and Assessment Act 1979 s 4, 125(1) LEGISLATION CITED: Interpretation Act 1987 s 33 Gosford Interim Development Order No 122 cl 35 CASES CITED: Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15 Miller v Minister of Pensions [1947] 2 All ER 372 D C Pearce and R S Geddes, Statutory Interpretation in Australia, 6th ed (2006) LexisNexis TEXTS CITED: Macquarie Dictionary Online (Macmillan Publishers Australia, 2010) Oxford English Dictionary Online second edition 1989 (Oxford University Press, 2009) DATES OF HEARING: 15 March 2010, 16 March 2010 DATE OF JUDGMENT: 1 April 2010 PROSECUTOR Mr M Baird SOLICITOR LEGAL REPRESENTATIVES: P J Donnellan & Co DEFENDANT Mr I Hemmings Pro bono JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 1 April 2010 50046 of 2009 Gosford City Council v Forrester JUDGMENT 1 Her Honour: The Defendant is charged with committing an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that he cut down trees within the Gosford City local government area to which a tree preservation order (TPO) applied without the necessary consent of Gosford City Council (the Council). According to the particulars of the offence in the summons, four trees were felled and/or cleared being two syncarpia glomulifera (turpentine) (referred to as T1 and T4 in this judgment), one eucalyptus salinga (blue gum) (referred to as T2) and one eucalyptus pilularis (blackbutt) (referred to as T3). The alleged offence took place on properties at 15 Erina Valley Road Erina Heights being Lot 4 DP 739718 (T4), 11 Erina Valley Road Erina Heights being Lot 10 DP 785850 (T1 and T2) and 388 The Entrance Road Erina Heights being Lot 3 DP 739718 (T3) from about 28 March 2008 to 31 March 2008 inclusive. The properties are collectively referred to as the land. The Defendant has entered a plea of not guilty. Prosecutor's case 2 The offence consists of cutting down trees which required consent of the Council under an environmental planning instrument (the Gosford Interim Development Order No 122 (the IDO)) and no such consent was granted. 3 Section 125(1) of the EPA Act provides: 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. Interim Development Order No 122 4 At all relevant times the IDO applied to the land. The IDO is a deemed environmental planning instrument under s 4 of the EP&A Act. Clause 35 of the IDO provides: (1) Where it appears to the Council that it is expedient for the purpose of securing amenity or of reserving existing amenities it may for that purpose make an order and may by like resolution rescind or vary any such order. (2) A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, injuring or destruction of any tree or trees specified therein, except with the consent of the Council and any such consent may be given subject to such conditions as the Council may think 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 in such order and such land may be described particularly or generally by reference to the land, the subject of this Order, or any part thereof. (4) The Council shall forthwith upon the making of a tree preservation order cause notice of the making of such order to be published in the Gazette and in a newspaper circulating in the area in which land described in the order is situated. (5) In any proceedings under this Clause it shall be sufficient defence to prove that the tree or trees ringbarked, cut down, topped, lopped, removed, injured or wilfully destroyed was or were dying or dead or had become dangerous . (emphasis added) Tree Preservation Order 5 On or about 8 March 2005 the Council resolved to make a TPO under cl 35 of the IDO applying to all the trees in the local government area of Gosford City having a height exceeding 3m above the ground. On or about 24 March 2005 the Council published a public notice of its decision to make the TPO in the NSW Government Gazette No 36. On or about 30 March 2005 the Council published a public notice of its decision to make the TPO in the Central Coast Express Advocate, a newspaper circulating in the Gosford City local government area. The evidence of Darren Riding, Council officer, set out below (par 13) confirms all the matters in relation to the making of the TPO pursuant to the IDO. 6 The TPO states that: Pursuant to its powers under the Environmental Planning and Assessment Act, the Regulations under that Act, clause 44 of the Gosford Planning Scheme Ordinance, clause 35 of Interim Development Order No 122 and clause 8 of the Environmental Planning and Assessment Model Provisions 1980 (adopted by clause 6 of Gosford Local Environmental Plan No 22), Council at its meeting held on 8 March 2005 (Minute No 211/2005) resolved to make a Tree Preservation Order that:- 1 No person shall ringbark, cut down, top, lop, remove, injure or destroy any tree without the consent of Council. 2 This Order applies to: 2.1 All trees in the city having a height exceeding three (3) metres from the ground. 2.2 Trees and categories of trees listed in Council's Significant Tree Register, irrespective of height. 2.3 Species listed in Schedule 1 of this Order irrespective of height. 2.4 Underscrubbing of vegetation irrespective of height (except trees referred to in Schedule 2) on land which is situated within a Rural Conservation 7(a) zone, Proposed Open Space 6(e) zone, Regional Open Space 6(d) zone, Coastal Lands Protection 7(d) zone or Coastal Lands Acquisition 7(e) zone under these planning instruments: 2.4.1 Gosford Planning Scheme Ordinance 2.4.2 Interim Development Order No 122 2.4.3 Gosford Local Environmental Plan No 22 Note: Development consent is required to underscrub in the zones referred to in this clause except for underscrubbing ancillary to agricultural uses in 6(d) and 7(e) zones. 3 This Order does not apply to:- 3.1 Tree species listed in Schedule 2 of this Order. 3.2 Trees within three (3) metres of an approved building. 3.2.1 This distance is to be measured one (1) metre above ground level and between the face of the wall and the part of the trunk nearest the building. 3.2.2 Definition: "approved building" means:- A building or part of a building which:- • has been approved by Council under the Environmental Planning And Assessment Act or Local Government Act, or • has otherwise been lawfully constructed but does not include:- a) A manufactured home, a moveable dwelling or associated structure or part of a manufactured home, a moveable dwelling or associated structure within the meaning of the Local Government Act; or b) A temporary structure within the meaning of the Local Government Act; c) A structure included in the list of "exempt development" in the Gosford Planning Scheme Ordinance or Interim Development Order 122. 4 All previous Tree Preservation Orders are revoked. 5 A consent issued by Council that applies to trees remains effective. 7 Because of their location (within Gosford City local government area) and height (exceeding 3m from the ground), the TPO applied to the trees specified in the summons. None of the subject trees were affected by the relevant schedules of the TPO which specified species subject to the TPO irrespective of height (schedule 1) or species excluded under the TPO (schedule 2). 8 The Prosecutor has established beyond reasonable doubt the elements of the offence that a valid TPO was in force as provided by the IDO, that the TPO applied to T1, T2 and T3, and no consent under the TPO was sought or obtained from the Council. The Prosecutor does not press the offence in relation to T4 on 15 Erina Valley Road. 9 The Defendant does not dispute that the TPO was validly made and applied to the land where the trees the subject of the offence are located. He admits he did not have the Council's consent to clear the three trees (T1, T2 and T3) as required by cl 1 of the TPO. The Defendant relies on cl 35(5) of the IDO that in any proceedings for an offence under the TPO it is a defence if the trees "had become dangerous". The Defendant must establish that defence on the balance of probabilities. Miller v Minister of Pensions [1947] 2 All ER 372 at 373-374 cited in Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15 at [229] states that proof on the balance of probabilities requires: … a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the Tribunal can say: 'We think it more probable than not', the burden is discharged, but if the probabilities are equal it is not. The focus of the hearing was on whether the Defendant had established that defence. Prosecutor's evidence 10 The Council relied on two affidavits from Council officers regarding the alleged offence. Mr Riding swore an affidavit on 10 July 2009 stating that on or about 31 March 2008, as Council Development Control Officer, he attended 15 Erina Valley Road in response to a report of trees being cut down in the vicinity of that property. He was unable to locate any current consents in the Council consent register for tree works for Lots 3 (388 The Entrance Road) and 4 (15 Erina Valley Road) in DP 739718 or Lot 10 in DP 785850 (11 Erina Valley Road). He observed and photographed two trees cut down from the property at 11 Erina Valley Road (Lot 10 in DP 785850) being a turpentine (T1) and blue gum (T2), one tree cut down from the property at 388 The Entrance Road (Lot 3 in DP 739718) being a blackbutt (T3), and one tree cut down from the property at 15 Erina Valley Road (Lot 4 in DP 739718) being another turpentine (T4). A map identifying the approximate location and numbering of each tree on the respective lots is annexed to the affidavit. 11 Mr Riding states that while attending 15 Erina Valley Road he had a conversation with Mr John Forrester, the Defendant, whom he knew to be the proprietor of Terrigal Tree Care regarding the absence of consent for the tree works. Mr Riding also states that after leaving 15 Erina Valley Road he had telephone conversations with Sue Bannister, owner of 386 Erina Valley Road, and with Raymond and Joan Andrews, the owners of 388 The Entrance Road. Annexed to Mr Riding's affidavit is a copy of a statutory declaration by Mr and Mrs Andrews dated 21 May 2008 which states that on 1 May 2008 they had informed the Defendant that at no time did they give permission for, or consent to, tree works on their premises. 12 On 14 April 2008 Mr Riding, accompanied by Council Tree Preservation Officer Brian Pike, returned to 15 Erina Valley Road and spoke to Elaine Massie, one of the owners of that property. He also took additional photographs of the felled trees and stumps. Copies of the photographs are also annexed to the affidavit. A statutory declaration dated 16 April 2008 made jointly by Mr Colin Massie and Mrs Massie stating their concern for trees on their property is annexed to Mr Riding's affidavit. 13 Further annexures to Mr Riding's affidavit provide copies of the documentation instituting the TPO. The documents include an extract from the IDO stating the objectives of Zone No. 7(c2) which apply to the land, a notice of the Council resolution from its meeting on 8 March 2005 resolving to make a TPO for the City of Gosford, including the TPO attached to that notice, an advertisement detailing the TPO in the New South Wales Government Gazette No 36 dated 24 March 2005, and a public notice of Council's decision to make the TPO and details of the TPO as published in the Central Coast Express Advocate on 30 March 2005. Mr Riding also gave oral evidence particularly in relation to T4. 14 Brian Pike swore an affidavit on 10 July 2009 which states that he is a Council Tree Assessment Officer, and has been employed in that role for 16 years. Mr Pike has tertiary qualifications in horticulture and arboriculture, and his current duties include the assessment of tree related issues in relation to development applications. He confirms that he accompanied Mr Riding to 15 Erina Valley Road on 14 April 2008. 15 Annexed to Mr Pike's affidavit is a copy of a tree report from Terrigal Tree Care, the Defendant's business, dated 15 April 2008. This describes the removal of two trees (T1 and T2) from 11 Erina Valley Road on 28 March 2008 due to their dangerous state and safety concerns. The tree report also describes the removal of a tree (T3) from 388 The Entrance Road on 31 March 2008 as the tree was totally unstable. 16 Also annexed to Mr Pike's affidavit is a copy of a memorandum dated 21 May 2008 written by Mr Pike addressed to Mr Riding on the subject: Unauthorised tree removal – 15 Erina Valley Road Erina and adjoining properties. In the memorandum he describes the stump of T1 as "recently cut and showed no defects within the limited amount of tree remaining" and states that there is no photographic evidence to support the Terrigal Tree Care assessment. Mr Pike acknowledges the major cambium damage evident on felled T2 and states: This cambium damage within the structure of the tree would consider [sic] the tree as hazardous and therefore if applied for removal, approval would likely be granted. Mr Pike states in the memorandum that the T3 stump was inspected and noted as "not being structurally desirable". An application for removal would be likely to be granted approval had it been made. The memorandum concludes he is not satisfied that an emergency existed to remove any trees without a permit. 17 Mr Pike also gave oral evidence identifying the particular species of the subject trees as they appear in the photographs tendered as exhibit E in the proceedings. He testified that he observed cambium damage in T2 (bluegum) in the photographs, and that cambium damage can compromise tree structure. Based on the photographs of T2 Mr Pike stated he was unable to confirm the existence of fungus. He also identified T3 (blackbutt) in a photograph. 18 Mr Pike explained the general guidelines he applied in tree assessment which included assessment of structural integrity, vigour, and overall health and desirability of tree species. Mr Pike testified that the major cambium damage to T2 appearing in the photographs was consistent with the physical evidence he observed during his site inspection, and that he would have been likely to grant approval for removal because the tree was hazardous. He stated he had no evidence that T1 was snapped by T2, but stated there was evidence of interaction between the two trees and that it was possible T1 had sustained some damage. Mr Pike also stated that he was likely to grant approval for removal of T3 due to its dangerous state due to heaving (moving in the ground). 19 Mr Pike also testified that he was aware of the provision of cl 35(5) of the IDO. He used the terms "dangerous" and "hazardous" when giving evidence of his assessment of the subject trees. He stated that a dangerous tree is a tree that could imminently fall and cause injury to people or property. He stated that a hazardous tree was a tree that had the potential to be dangerous. He also stated that there was little difference between the terms for the purposes of cl 35(5). He later clarified this to state that "dangerous" did mean the likelihood of a tree falling on persons or property was imminent. Defendant's oral evidence 20 The Defendant gave oral evidence that he removed T3 because it was heaving and dangerous. He has been involved with the property at 15 Erina Road for ten years. Only T3 was removed on 388 The Entrance Road. He removed the twin-trunked T1 on 11 Erina Road because the blue gum next to it (T2) was leaning against it and had caused damage to the right hand trunk. This had caused T1 stress over the years and it had snapped off at the fork leaving the right hand trunk hanging in the tree canopy and leaning against the left hand trunk causing further stress and the whole of the tree had become dangerous. The blue gum (T2) was dangerous and weak from rubbing on T1. 21 The Defendant has qualifications in horticulture and arboriculture from Scotland and has practised in NSW for 12 years and in the Gosford area for 10 years. He is aware of the TPO and its terms and is aware of the defence in cl 35(5). He is aware there is a process to obtain consent for tree removal under the TPO. He has been given approval by the Council over the telephone to remove trees following storms in 2006. 22 In cross-examination he was asked if he recalled a telephone call to Mr Pike at the Council. He called Mr Pike after the job had been completed on 31 March 2008. He called him because Mr Riding had been on site and he had wanted to tell Mr Pike he had cut down trees without consent because they were dangerous. He knew there were no approvals for tree removal on the land after 2005. He was rung by Mrs Massie asking him to come and look at trees on the land. He felled T1 and T2 first, then T3 later. Two other men worked on the job. They arrived about the same time and were experienced arborists he had worked with before. He could not recall if the two men were on site first or not. He thought they arrived about the same time. 23 He saw that T1 and T2 were in a particularly dangerous state and T3 was heaving. He talked to the owners of 11 Erina Road, who were happy for T1 and T2 to be removed. He agreed he did not take photographs of T1 and T2 before they were cut down. There was a wood chipper on site to chip trees as they went along. In relation to T2 there was cambium damage because of the turpentine (T1) rubbing against it. This had weakened T2 about 6m up the trunk. Asked whether he could have removed it 6m up at the point of cambium damage, he considered there was clearly fungal damage on the trunk below 6m so that the rest of the tree was also removed. Asked if the blue gum below the 6m was still healthy he said bracket fungus was a good indicator that the tree was not healthy, and made the tree dangerous. He did not agree that the reason there was no photographs of T1 and T2 before the removal was because they were not damaged. He did not agree that when the right hand fork of T1 was removed the rest of the tree was not dying or dangerous. He assessed the remaining canopy of the left hand trunk of T1 to be severely damaged and unhealthy. He agreed with the proposition put to him that there was possibly no requirement to remove the whole tree to make it safe. Prosecutor's submissions 24 No issue is raised by the Prosecutor in relation to the application of the TPO that T3 on 11 Erina Valley Road was cut down without the permission of the owners, Mr and Mrs Andrews. The Defendant has not established the defence under cl 35(5) of the IDO on the balance of probabilities. Mr Pike's memorandum does not identify that there was any issue with the health of T1 and T2. The photographs taken by Mr Forrester of T2 after it was cut down show that there was fungal damage in the tree but that could only be identified once the tree was cut down. There is no evidence that Mr Forrester attempted to investigate the health of the tree before it was cut down. He accepted in cross-examination that once the top part of T2 above 6m had been removed it was not necessary to remove the whole of the tree. This submission is supported by the statutory declaration of Mr and Mrs Massie, owners of 15 Erina Valley Road, that they had requested Mr Forrester to come onto the property to inspect cypress pines. There was no need to remove the whole of T1 as T2 was only damaging one of the forks of that tree. Mr Pike identifies in his memorandum that the tree was hazardous but not necessarily dangerous. Mr Pike's evidence is that a hazardous tree is not necessarily dangerous. Nor did Mr Pike accept that the presence of fungus meant that the tree had to be removed. 25 For a tree to be dangerous there must be more than the possibility that branches could fall or snap or the tree fall down, otherwise all trees are inherently dangerous. "Dangerous" must mean that a tree is likely to become unsafe beyond the usual course of events. "Dangerous" in cl 35(5) must mean that within the foreseeable future the tree is likely to be dangerous. 26 In relation to T3, there is no specific evidence from Mr Forrester about its condition prior to its removal, apart from the photograph of the tree itself. There is no evidence that the tree was unhealthy, only that heaving was occurring at the base. 27 Before the Court can be satisfied of the defence, the Court must have evidence from Mr Forrester that a tree had become dangerous before it was cut down. The absence of a photograph of T1 and T2 taken before they were cut down is telling. There is such a photograph of T3 in evidence. Defendant's submissions 28 The Council raises against the Defendant that there were no photographs taken before T1 and T2 were cut down. It has prepared evidence from the Massies, the Andrews and Ms Bannister and could also have produced photographs in the course of doing so. There was effectively no difference between "hazardous" and "dangerous" in the evidence of Mr Pike except that "dangerous" meant imminent in his view. There should be no debate about T3 given Mr Forrester's evidence that it was heaving and Mr Pike's memorandum accepting that he would have been minded to grant approval for its removal. The Court can be satisfied beyond reasonable doubt that the tree was heaving and had become dangerous prior to its removal by Mr Forrester. 29 Clause 35(5) refers to a tree becoming dangerous. There is no distinction in cl 35(5) drawn between "part of a tree" and "a tree" so that once part of a tree has become dangerous the defence can operate in relation to the whole tree. A strict interpretation of the statute is required in criminal proceedings. That is the approach taken by Mr Pike to T2 in his memorandum where he considered that there was evidence of cambium damage and he concluded that he would have granted approval for removal of the whole tree. 30 Nor does cl 35(5) require the opinion to be formed that a tree has become dangerous before the tree is cut down. In this case Mr Forrester's evidence is that he did form that opinion before the trees were cut down but that is not necessary in order to establish that the defence in cl 35(5) applies. Mr Forrester was not cross-examined about his observations of fungus on the outside of T2 and the defence in relation to that tree is made out. 31 If one fork of T1 had become dangerous then the defence is established for the whole of T2. Mr Forrester attests that one side of T1 had snapped off and was hanging in the other part of that tree. Mr Forrester accepted that there may not have been a need to remove the other trunk of T1 but that tree is one tree. The Defendant has established the defence under cl 35(5) in relation to T1 and T2 on the evidence. Finding on whether defence under cl 35(5) has been established 32 The Defendant must establish on the balance of probabilities that the trees in issue had become dangerous in order to rely on the defence in cl 35(5) of the TPO. No cases on the meaning of dangerous in this context have been referred to by the parties or found by the Court. There is no definition of the word "dangerous" in either the IDO or the TPO so that its ordinary meaning must be considered in the context of the IDO and the TPO. The Macquarie Dictionary Online (Macmillan Publishers Australia, 2010) defines "dangerous" as: Full of danger or risk; causing danger; perilous; hazardous; unsafe. The Oxford English Dictionary Online second edition 1989 (Oxford University Press, 2009) defines "dangerous" as: Fraught with danger or risk; causing or occasioning danger; perilous, hazardous, risky, unsafe. 33 The ordinary meaning of "dangerous" therefore includes "hazardous". Mr Pike's evidence was that he refers to trees being hazardous and distinguishes that from dangerous. In his view, a hazardous tree is not necessarily dangerous. On Mr Pike's evidence a tree must be in imminent danger of falling in a place or manner that is dangerous to persons or property to warrant the application of the defence in cl 35(5) of the IDO. In his memorandum (at par 16 above) he describes T2 as hazardous in light of the cambium damage and T3 as "not being structurally desirable". He also stated in his memorandum that he did not consider an emergency existed to remove any trees without consent. Clause 35(5) does not use the word emergency in the context of a tree becoming dangerous. The ordinary meaning of the word as used in the IDO does not suggest there is any relevant distinction between hazardous and dangerous such as that identified by Mr Pike. Applying the ordinary meaning of the word dangerous must result in its application to a wider range of circumstances than simply emergencies, suggesting Mr Pike's approach is too narrow. 34 Having said that, an important matter of interpretation of the defence in cl 35(5) of whether a tree has become dangerous is whether it must have a temporal aspect. It clearly must if the TPO is to be effective in regulating the removal of trees. As submitted by the Prosecutor, any tree could be considered dangerous if at some stage in the future it could drop a limb or fall down, an interpretation which would frustrate the controls in the TPO if the defence in cl 35(5) was so readily available. There is no specific time period referred to in cl 35(5) by which to assess that a tree has become dangerous. The potential for imminent harm required by Mr Pike is linked, I infer, to his view that there has to be an emergency to justify application of the defence in cl 35(5). "Becoming dangerous" is not synonymous with an emergency. The temporal aspect of a tree becoming dangerous must be longer than in an emergency which suggests imminent likelihood of harm to persons or property. The Prosecutor also referred to the requirement that "has become dangerous" must mean a likelihood of harm within the foreseeable future, an acceptable interpretation in my view. Provision of a specific timeframe by which to provide guidance on the operation of cl 35(5) is problematic. A relevant consideration must be that the breach of a TPO gives rise to a criminal offence. 35 A further issue, raised by the Defendant, is when the opinion that a tree has become dangerous has to be formed in order that a defendant can rely on the defence in cl 35(5). The construction of words in regulatory instruments requires that the plain and ordinary meaning of a word be applied where that accords with the statutory context and purpose, generally referred to as the purposive approach to construction as recognised in the common law (established in cases referred to in D C Pearce and R S Geddes, Statutory Interpretation in Australia, 6th ed (2006) LexisNexis at p 27-29). That approach is required by Pt 5 s 33 of the Interpretation Act 1987 in relation to Acts and statutory rules. The IDO is not a statutory rule as defined in the definition of the Interpretation Act so that on its face s 33 does not apply. The IDO is a statutory instrument to which Pt 5 of that Act applies however so that it is arguable that the approach in s 33 does, and in any event should, apply in relation to the construction of the IDO. The making of a TPO is provided for under cl 35(1) of the IDO if the Council considers it is expedient for securing amenity or reserving existing amenity. The use of the particular words "has become dangerous" in cl 35(5) suggests that such an opinion must be formed before a tree is cut down. The Defendant's counsel submitted that the opinion can be formed after the tree has been cut down as the section does not state when the opinion must be formed. Such an approach to the construction of cl 35(5) would substantially reduce the effectiveness of a TPO in protecting trees if they could be cut down before the opinion that they have become dangerous is formed. That confirms the construction suggested by the plain meaning of the words is correct. 36 The Defendant's counsel submitted that a conclusion that part of a tree has become dangerous must be a conclusion about the whole tree so that the whole tree can be removed where part is found to be dangerous. The IDO and TPO make no reference to part of a tree, and there is no definition of tree in the EP&A Act, IDO or TPO to assist in construction. This approach was argued to be a strict construction of the statute but a strict construction would result in the opposite conclusion in my view. In other words, the IDO (and TPO) refer only to a tree meaning a whole tree and it is about the whole tree that the opinion in cl 35(5) must be formed in order for the defence to be made out. Such an approach to construction also upholds the intent of the TPO which is to prevent the cutting down of trees without the required consent of the Council being first obtained. Otherwise a conclusion that a single branch had become dangerous would enable the whole tree to be cut down in reliance on cl 35(5). Has the defence been established? 37 The Defendant must establish the defence on the balance of probabilities that each tree the subject of the charge (as a whole) had become dangerous at the time that he cut it down in March 2008. The Defendant is a qualified arborist and has worked in the relevant local government area for approximately 10 years. He is familiar with the TPO and its requirements and is aware of the defence provided in cl 35(5) of the TPO. According to the statement of Mr and Mrs Massie annexed to Mr Riding's affidavit, they engaged the Defendant for the purpose of inspecting and assessing the trees on their property as well as trees close to their property boundary. They state that the Defendant has been monitoring the trees for four years, and that they relied on his assessment of the risk posed by the subject trees and their immediate removal on 28 March 2008 and 31 March 2008 based on that assessment. 38 For the reasons given by the Defendant's counsel and based on the Defendant's evidence the defence has been established in relation to T3. Mr Forrester described this tree as heaving, meaning the base of the tree and roots were moving in the ground. He formed the opinion before the tree was cut down that it had become dangerous. There is a photograph showing T3 before it was cut down. It is a substantial tree. I have held that "becoming dangerous" includes trees that are hazardous and are likely to fall in the foreseeable future. The collapse need not be imminent for the tree to have become dangerous. There was no evidence to contradict the Defendant's view. Mr Pike's memorandum records that he would have granted approval for removal of T3 if applied for in light of his assessment of the T3 stump. While not essential to establish the Defendant's opinion at the time the tree was cut down, it confirms his opinion was likely to be correct. 39 In relation to T2, the bluegum which suffered cambium damage at about the 6m mark as a result of rubbing on one of the trunks of T1, the Defendant's evidence is that he formed the opinion that the section of the tree above the damaged section was dangerous. He also gave evidence that he saw bracket fungus on the rest of the trunk which suggested it was affected by fungal damage which would weaken it. This was confirmed when he cut down the tree, as can be seen in the photographs in exhibit E. Nevertheless he had formed the necessary opinion before the tree was cut down that it had become dangerous. Mr Pike's evidence is that he considered T2 had cambium damage which he considered meant the tree was hazardous and he would have granted approval for its removal if applied for. While not essential to establish the Defendant's opinion at the time the tree was cut down, it confirms his opinion was likely to be correct. The Defendant has established the defence under cl 35(5) in relation to T2. 40 T1 consisted of two trunks. The Defendant's evidence is that T2 had leaned on T1 for some period and caused one trunk of T1 to snap off and hang in the canopy causing it damage and generally weakening the tree canopy. He removed both trunks of T1 because he considered the tree was weak and had become dangerous. His evidence refers to T1 as a whole and his assessment related to the whole tree, not part of the tree. While I have rejected his counsel's argument that a conclusion that part of a tree has become dangerous must apply to the whole tree, that position does not reflect the Defendant's evidence. Nor does his admission in cross-examination that it was possibly not necessary to remove the second trunk to make it safe undermine his defence that he held the necessary opinion that T1 had become dangerous at the time he cut it down. Mr Pike's memorandum which stated that he could not see any structural problem in the remaining stump of T1 does not negate that defence. The defence in cl 35(5) has been established on the balance of probabilities in relation to the cutting down of T1. Finding 41 The Court finds the Defendant not guilty in relation to the charge that he cut down three trees in breach of the Gosford City Council TPO. Accordingly the charge should be dismissed. 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.