Who Should Pay? The Court's "Tree Principle"

Litigation under the Trees (Disputes Between Neighbours) Act 2006 has become an increasingly significant part of the Land and Environment Court's caseload in the years since the Act came into force. One of the issues that the Court has had to deal with is deciding who should bear the costs of removing, or undertaking remedial work to trees that is found to be necessary to prevent property damage or risk of personal injury. This question is particularly problematic in situations where new construction has been carried out on land adjacent to another property where pre-existing trees have reached a stage of advanced growth.

The Court has adopted a "tree dispute principle" which it relies upon to guide its decision-making in such cases. Persons who are considering proceedings under the Act need to be mindful of this principle, which was enunciated in the case of Black v Johnson (No 2) (2007) NSWLEC 513. A link this judgment is at:

 http://www.lawlink.nsw.gov.au/lecjudgments/2007nswlec.nsf/00000000000000000000000000000000/93c135bdf4f5abdbca257338000f1f9d?opendocument

The case arose from a circumstance where new building works had been carried out under the authority of a development consent that was issued by Lake Macquarie Council.  Four large Spotted Gum trees had been established near the common boundary.  The Court (composed of Senior Commissioner Moore and Acting Commissioner Thyer) made findings that branches from one of the trees had become detached and had caused damage to the roof tiles on the new dwelling. The Court was therefore satisfied that the precondition for the making of an order requiring the removal of the tree under section 10(2)(a) of the Act had been met, namely that the tree had caused damage to the applicant's property.

With this finding apparently in mind, the Court stated the first prong of the tree dispute principle, namely, that the fact that a tree has been in place prior to new construction will not prevent the Court from making an order requiring the tree to be removed,  or for remedial action (pruning of branches) to be taken in circumstances where the tree has caused property damage or presents a risk of such damage or of injury to a person. 

The second prong to he tree dispute principle that was announced in Black v Johnson deals with how responsibility for undertaking or paying for the cost of tree removal or remedial action should be allocated.  

The Court stated that among the factors to be considered are whether the tree in question has been planted or "self-sown", the type of tree that has been planted, and the suitability of the location where the tree has been planted. Although the Court did not discuss or explain how these factors will be applied in Black v Johnson, it seems apparent that responsibility is less likely to be apportioned to the owner of neighbouring land when a tree is self-sown. Conversely, it is also apparent that there is a greater likelihood that the obligation for removal or remedial action will be imposed on the owner of the land where the tree is growing in cases where the species of trees that have been planted are ones that are likely either to drop branches or be toppled in storm events, and where the trees have been planted in proximity to the common boundary.

The last prong of the tree dispute principle requires the Court to examine the design of the new construction. In cases where the new structure could have been situated at a location where there would not have been a risk of property damage or personal injury from the pre-existing trees on the neighbouring property, it is less likely, under the tree principle, that the owner of the adjacent property where the trees are growing will be ordered to pay the costs of tree removal or other remedial action.

In the particular circumstances that existed in Black v Johnson, the Court found that the new dwelling that had been damaged could have been located 3 metres further forward - in other words, away from the common boundary. However, the Court determined that even if this change to the design of the new dwelling had been made, there would have been risk of injury to persons in the courtyard (as the courtyard would have been located where a branch from the tree that was the subject of the case had fallen). On the basis of this finding, the Court made orders requiring the owner of the property where the pre-existing tree was growing to remove the tree.

The guidance to be drawn from the tree dispute principle that was stated in Black v Johnson is that the owners of newly-developed properties will be unlikely to succeed in actions under the Act where there are feasible alternative design solutions that will place the new building sufficiently far from pre-existing trees to avoid the risk of property damage or risk of injury to persons.

Court Makes Orders Allowing Council to Remove Accumulated Waste From Property.....But

The problem of "waste hoarders" - people who collect and accumulate all manner of general rubbish in both the yards and indoor areas of dwelling houses - is one that seems to plague virtually every local council. Not only is such waste hoarding unsightly, but it also carries with it significant public health issues as the waste piles can attract rats and other vermin; are malodorous; and can pose a fire safety risk to neighbouring dwellings.

Councils have authority under section 124 of the Local Government Act to issue orders to require the owners or occupants of residential properties to remove piles of waste material from their land and to refrain from depositing additional waste. Additionally, councils can bring proceedings in the Land and Environment Court to enforce these orders. While it remains an open question as to whether these existing legal remedies are adequate to address the problems posed by waste hoarding, they are presently the only tools that are available.

Perhaps no case epitomises the difficulties that councils encounter when trying to deal with waste hoarding than the matter of Waverley Council v Bobolas (No. 3), 2014 NSWLEC 16.  The Land and Environment Court's Website reveals that there have been a lengthy series of proceedings, dating back nearly 10 years, to 2005, in which the Council has sought to enforce orders requiring the owners of a property in Bondi to remove accumulated waste. 

The recent developments in this case have been extensively reported in the news media (see for example the articles in the Daily Telegraph at the following links):

http://www.dailytelegraph.com.au/news/nsw/mary-bobolas-arrested-during-bondi-cleanup-after-allegedly-hitting-and-spitting-on-police/story-fni0cx12-1226883441877

and 

http://www.dailytelegraph.com.au/news/nsw/bondis-famous-hoarders-the-bobolas-have-started-to-pile-up-rubbish-just-weeks-after-cleanup/story-fni0cx12-1226948403087

These articles report that there has been a seemingly endless cycle of the Council's getting orders from the Court either to require the owners to clean up the property, or to allow the Council to gain access to the property in order to carry out the work required by the clean up orders. The articles indicate that after each round of clean up, the same pattern of renewed accumulation of waste material repeats itself. According to the Telegraph articles, Waverley Council has spent more than $350,000 in legal fees and clean up costs to address the issues at the property.

In these latest proceedings, presided over by Justice Biscoe, the Court made findings that the Council had served notice of the latest clean up order that was given under the Local Government Act on the owner and that notwithstanding that order, the piles of waste had not only remained on the property but had increased in size; and that the waste was putrid and offensive smelling and posed a health risk to the occupants of the dwelling and to residents of neighbouring properties. Consequently, Justice Biscoe saw fit to issue an order under section 678 of the Local Government Act allowing the Council to enter the property and to remove the accumulations of waste. 

Justice Biscoe's judgment in the case can be found here:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=169981


The Daily Telegraph reports indicate state that shortly after the clean up was completed under the authority of the orders made by Justice Biscoe, the owners had begun yet again to deposit large quantities of waste in the outdoor areas of the property. This saga thus appears to be dragging on ad infinitum (and surely, where the unfortunate neighbours of this property are concerned, ad nauseum!). 

As the Bobolas case illustrates, councils that are dealing with people who persist in hoarding waste on residential properties have no alternative save to repeatedly issue clean up orders under the Local Government Act, and to return to the Land and Environment Court with renewed applications to enforce those orders.  This process can be protracted and expensive, as it is often difficult for councils to effect service of the original clean up orders that are issued under the Local Government Act or of the papers associated with the proceedings to enforce those orders in the Court. Therefore, numerous appearances may be required in the Court simply in order to obtain leave to effect "substituted service" on the responsible persons (by posting notice of the orders or Court proceedings in a prominent location at the affected property).

In the end, the persons responsible for depositing large waste piles on their own properties often do not have the werewithal, either financially or from a "mental health" standpoint, to undertake a clean up themselves. Thus it is not uncommon for councils finally reach the point (as happened in the Bobolas case) where they have no alternative but to seek orders from the Court allowing them to undertake the necessary clean up work directly. 

Operator of Quarry and Company Directors Convicted of Providing Misleading Annual Return to the EPA

The operator of a "hard rock" quarry located at Corindi Beach on the north coast of NSW near Coffs Harbour, Wyanga Holdings Pty Ltd, as well as the company's directors, have been convicted in the Land and Environment Court for breaching the Protection of the Environment Operations Act by failing to disclose on their Annual Return to the EPA that the company had exceeded production limits imposed in its Environment Protection Licence.  The company directors were held personally liable for the offence due to the application of section 169(1) of the POEO, which provides that when a corporation contravenes the Act, the directors of the company are also taken to have committed the same breach.  

The circumstances of the offence were that the company submitted an Annual Return for the 12 month period from 1 February 2011 - 30 January 2012 which did not acknowledge that a licence condition limiting the quantity of material that could be lawfully extracted at the quarry to 50,000 tonnnes a year had been breached.  The actual level of production during that period was actually nearly twice that amount, more than 96,000 tonnes. 

The company and the directors were prosecuted under section 66(2) of the POEO. This section of the Act provides that the holder of a licence that provides information to the EPA under the conditions of an environment protection licence that is false or misleading in a material respect is guilty of an offence and is subject to substantial penalties ($1 million in the case of a corporation and $250,000 in the case of an individual).

Although the company and its directors pleaded not guilty to the charge, they did not contend either that the company had not exceeded the production quote imposed by the condition of its environment protection licence, nor did they contend that they had in fact disclosed the exceedence in their Annual Return. Instead, they advanced submissions to the Court that the prohibition in section 66(2) of the Act against submitting false or misleading information to the EPA extends only to information of the kind that is identified in section 66(1) - namely, information relating to monitoring.

The Court, per Justice Craig, rejected the defendants' proposed interpretation of section 66(2) of the Act, finding that there is no language in section 66(2) which limits or qualifies the prohibition against submitting false or misleading information only to the type of monitoring information that is required by section 66(1). The Court's decision thus makes clear that providing any false or misleading information that is required to be submitted under the condition of an environment protection licence may give rise to criminal sanctions.

The Court's decision,  Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi (2014) NSWLEC 68 can be found at the following link:

http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=171862

It appears that this prosecution is only one aspect of an ongoing legal battle between the NSW EPA and Wyanga concerning exceedence of the quarry's production limits. News articles have reported that the EPA suspended the quarry's environment protection over additional exceedences of the production quota in August 2013, effectively shutting the quarry down (see http://www.coffscoastadvocate.com.au/news/epa-shuts-corindi-quarry-after-alleged-over-limit-/2004963/). An article also indicates that the company appealed against the licence suspension to the Land and Environment Court, but that the appeal was subsequently withdrawn before the case was heard: http://www.dailyexaminer.com.au/news/quarry-ends-dispute/2106364/

The Court's Website has not yet published a judgment on sentence regarding this prosecution so the fines imposed for this offence are not yet known.  In a prosecution that was brought by the NSW Department of Planning for a related offence - exceeding the production quote imposed by a condition of a development approval granted under the Environmental Planning and Assessment Act - Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246 the defendant was fined $70,000.  Refer to http://www.lawlink.nsw.gov.au/lecjudgments/2010nswlec.nsf/2010nswlec.nsf/WebView2/101D7098E2196DB7CA2577E700065236?OpenDocument.

It is therefore clear that the substantive offence of breaching the condition of an approval imposing a production limit can attract very substantial penalties. It will be interesting to learn how an offence involving the failure to truthfully disclose such a breach to the regulatory authorities will be dealt with by the Court.

Council Penalised for Accidental Spill of Landfill Leachate

The Land and Environment Court has ordered the Greater Taree Council to pay a contribution of $37,500 (in lieu of penalties) towards a bushland regeneration project as punishment for a pollution incident that occurred at the Council's solid waste landfill in April 2012.  The sentence, which was imposed by Justice Sheehan, also required the Council to publish notice of the offence in the newspaper that circulates in the Council's local government area, and directed the Council to pay the EPA's investigative and legal costs associated with the prosecution of nearly $60,000. 

The Court's judgment is reported at Environment Protection Authority v Greater Taree City Council [2014] NSWLEC 88 and can be found at the following link: 

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172420

The proceedings against the Council were brought in response to a spill from a pipeline that carried leachate from collection ponds at the landfill to a local sewage treatment plant.  Even though the landfill itself was operated by a private contractor, the Council was named as the sole defendant in the prosecution because under the terms of the contract the Council remained responsible for management of the pipeline.

The decision in this case is of particular interest because the Council received limited mitigation of the amount of the monetary contribution it was required to make in lieu of penalties even though it had conducted itself in virtually all respects as a "model defendant". Justice Sheehan's judgment recites that the only factor for which a discount on penalty was given was the Council's early plea of guilty. Ordinarily, the Court takes into account matters such as the defendant's prior record of environmental compliance,  the measures taken to limit the environmental harm associated with a pollution spill and to prevent a recurrence, as well as the defendant's cooperation with the prosecutor and expression of contrition and remorse. However, it appears from Justice Sheehan's judgment that these factors were not given any particular weight in the determination of the ultimate punishment.

The judgment in the case certainly suggests that the Council conducted itself in an unusual and exemplary manner following the discovery of the pollution incident.  Approximately 45 tanker truck loads of contaminated water, amounting to more than half a million litres, was pumped from the receiving streams and transported back to leachate collection ponds at the landfill. The Council also implemented a number of measures to prevent a similar breach from happening in the future, including planning for the design and construction of a new leachate pipeline to be located away from any watercourses and implementing comprehensive measures to monitor the existing pipeline to enable early detection and response to any possible future pipeline leaks. Furthermore, the Court's judgment indicates that the Council arranged for several senior officers to attend the hearing on sentence that was held by the Court to confirm the Council's contrition with respect to the incident, and an affidavit was also prepared by the Council's general manager which attested to the Council's sincere and genuine regret and apology. Additionally, Justice Sheehan stated that he accepted that the Council was a defendant that had an "excellent corporate character".

It has been the Court's normal practice to give weight to such mitigating factors, to balance them against objective sentencing factors including the level of environmental harm caused by an incident as well as the degree to which the incident could have been foreseen, and then to arrive at a conclusion concerning the appropriate penalty through a process of "instinctive synthesis" (in other words, giving consideration to all relevant matters and then reaching a conclusion concerning the just and fair disposition of the case).  

It is not apparent from Justice Sheehan's judgment why the Court did not see fit to give greater importance to the mitigating factors which were present in this case, especially in view of the fact that the level of environmental harm occasioned by the spill also appeared to be relatively low. 

Nonetheless, it is our view that the approach adopted by the Council in this case, both in its response to the pollution incident and in dealing with the proceedings before the Court is one that should commend itself and which offers an example of a course of conduct that may lead to more lenient treatment by the Court when it comes to fines.

Owner-Builder Winds Up In Hot Water For Carrying Out Unauthorised Building Works

The owner/builder of a house in Croydon Park has been fined nearly $10,000 and ordered to pay the Council's prosecution costs for failing to comply with the requirements of a development consent issued by Burwood Council. The judgment of Chief Justice Preston of the Land and Environment Court imposing sentence, Burwood Council v Pratelli (2014) NSWLEC 28, can be found at the following link:

http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=170522

The charges against the defendant alleged that she had not complied with two conditions of the development consent that had been granted to her by the Council, namely that she build the house in accordance with the plans that had been approved by the Council, and that she had failed to arrange for the building works to be inspected by an accredited private certifier at critical stages of the construction works.

The Council's main concern was that the defendant had carried out unapproved works to the "subfloor area". The Council's inspections revealed numerous aspects of non-compliance, including that the subfloor area had been excavated to a greater depth than allowed, thereby increasing the ceiling height of this part of the house; that windows had been installed to the subfloor space; that partitions had been constructed in the subfloor area, creating two rooms; and that access to the subfloor space had been created by the relocation of an internal staircase and by increasing the height of a door on an external wall of the house. 

Following the Council's discovery of the breaches of the development consent, the defendant undertook remedial measures, which included bricking up the windows that had been installed in the wall of the subfloor area and removing doors that provided access to the area. 

The factors taken into account by the Chief Justice in imposing sentence included the need to publicly denounce the defendant's conduct, to hold her accountable for her actions and to deter others from carrying out building works otherwise than in accordance with the requirements of a consent. In mitigation of the penalty, the Court found that the defendant was contrite and remorseful and thus unlikely to re-offend, that she had taken steps to rectify the unlawful works, and that she had agreed to pay the prosecutor's costs.

In passing judgment on the matter, Chief Justice Preston found that the circumstances of the case warranted a penalty of $13,000, which was reduced by 25%, to $9,750, to take account of the defendant's plea of guilty.

It is worthy of note that the judgment on sentence does not include any discussion concerning how the failure of the defendant to arrange for critical stage inspections was accounted for in the penalty, if at all. 

The decision offers a cautionary tale to owner/builders, namely that seemingly small-scale breaches of the provisions of a development approval can attract substantial fines and requirements to pay Council's legal costs, even in instances where the owner/builder has accepted responsibility for the offence and has undertaken remedial actions.