Convictions for felling 62 native trees in Kuraby, Queensland are not uprooted

In brief

The case of En-Tzu Tseng v Brisbane City Council [2022] QCA 222 concerned an application for leave to appeal to the Queensland Court of Appeal (Court of Appeal) under section 118 of the District Court of Queensland Act 1967 (Qld) against the decision of the District Court of Queensland (District Court) in the case of Tseng v Brisbane City Council [2021] QDC 293 dismissing an appeal against convictions in the Magistrates Court of Queensland (Magistrates Court) in respect of 64 charges relating to the destruction of 62 native trees.

The Applicant had applied for, but did not have, the permission of the Brisbane City Council (Council) under the Council's Natural Assets Local Law 2003 (NALL) to interfere with native trees on land located at Kuraby (Subject Land).

The Applicant was convicted of the destruction of 62 native trees on the Subject Land, as well as of two failures to comply with a compliance notice given by the Council under section 35(1) of the NALL requiring the Applicant "…to either plant 823 native trees and shrubs of tube stock size, or 549 trees or shrubs of 45 litre stock size…". If the planting could not be accommodated on the Subject Land, the Council had a right to issue the Applicant with a private works order to recover an amount of $143,282 which was calculated in accordance with Council's OS21 Tree Removal and Replacement Procedure (Council's Procedure).

The Magistrates Court imposed in respect of the destruction of the native trees a fine of $35,000 and in respect of the failures to comply with the Council's compliance notice a fine of $5,000. The Magistrates Court also required the Applicant to pay legal costs associated with the convictions.

The Court of Appeal, like the District Court, was not satisfied that the Applicant's grounds of appeal were meritorious and dismissed the appeal.

Grounds of appeal

The Applicant relied on the following grounds of appeal in the Court of Appeal:

1. Duplicity Ground – The charges in respect of the interference with each of the 62 native trees were bad for duplicity.

2. Lack of Legislative Basis Ground – The Council did not have a legislative basis to issue the compliance notice, because it was not a law of Parliament or made under the NALL.

3. Inadmissibility Ground – The Council's overlay for significant vegetation and for waterway and wetland vegetation was not admissible and there was no evidence that the Subject Land was inspected in 2014 and 2016 when the overlays were created or at the time of the prosecution of the Applicant.

4. Identification of Native Trees Ground – The measuring of the 62 native trees for the purpose of determining the amount of a private works order was not sufficiently scientific.

5. Insufficient Evidence to Convict Ground – The interview with the Council in which the Applicant admitted to having a friend fell the 62 native trees ought not have been relied on by the Magistrates Court because the admission was not made under oath or in the presence of a lawyer and the Applicant was not warned of the legal consequences of making the admission.

6. Applications for Permits Ground – The applications made to the Council to interfere with the 62 native trees were prepared without professional assistance and should not be relied upon as an admission that there were in fact native trees on the Subject Land.

7. Mango Trees Ground – There was no proof before the Magistrates Court that the Applicant wanted to remove the 62 native trees to plant mango trees.

Court of Appeal's consideration

The Court of Appeal was not satisfied that any of the grounds of appeal alleged were meritorious, and relevantly held as follows in respect of each of the grounds:

1. Duplicity Ground – This ground was not established because section 7(3) of the NALL relevantly states "A person must not…interfere with, or cause or permit interference with…a protected tree". The particulars of the complaint in each charge against the Applicant was on the basis of the Applicant causing or permitting a tree to be interfered with in accordance with section 7(3) (see [8] and [9]).

2. Lack of Legislative Basis Ground – The Council had a right under section 35(3)(b) of the NALL to require a person in contravention of a provision of the NALL to "...take specified action, within a time or times specified in the notice, to remedy the contravention" (at [13]), and to apply the Council's Procedure in determining the calculation of the amount necessary to rehabilitate the Subject Land.

3. Inadmissibility Ground – In relation to the Inadmissibility Ground, the Court of Appeal held as follows:

   (a) The Council's overlay for significant vegetation and for waterway and wetland vegetation apply in accordance with the relevant definitions of "protected vegetation", which relevantly comprises "significant native vegetation" and "waterway and wetland vegetation" in the NALL (see [16] and [17]). 

   (b) Whilst "protected tree" is not defined in the NALL, it is reasonably clear in the scheme of the NALL that it is a tree which is captured by the definition of "protected vegetation" (at [19]).

   (c) It was sufficient for the Council to prove its case that the Subject Land was included in the overlays. The Applicant's arguments that the overlays were dated and that the Applicant's land was not inspected at the date the overlays were created or at the time the Applicant was prosecuted misunderstands the statutory purpose of the overlays (at [22]).

4. Identification of Native Trees Ground – The evidence of the Council officer who measured the diameter of the fallen native trees and the photographs the Council officer took were sufficient for the Magistrates Court to rely upon (at [23]).

5. Insufficient Evidence to Convict Ground – The interview was given voluntarily and Magistrates Court was right to rely upon the admissions made in the interview (at [27]). There was also sufficient evidence before the Magistrates Court to find the Applicant responsible for each of the 62 fellings of a native tree (at [28]).

6. Applications for Permits Ground – There was no merit in this ground of appeal, because the evidence of Council officers was sufficient to establish that each of the 62 trees were a native tree (see [30] and [31]).

7. Mango Trees Ground – This ground of appeal did not assist the Applicant and was irrelevant to the Council's case before the Magistrates Court and to the Magistrates Court's decision (at [32]).

Conclusion 

The Court of Appeal dismissed the application for leave to appeal with costs, because none of the alleged grounds of appeal were meritorious.