Blue Mountains City Council v Tzannes

Blue Mountains City Council v Tzannes - [2009] NSWLEC 19 - NSWLEC 2009 case summary — Zoe

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JUDGMENT 1 HIS HONOUR: This is a prosecution that should never have been brought. 2 In 2002, the defendant, Mrs Suzanne Tzannes, and her husband, Mr Ross Tzannes, purchased a property at Mt Irvine having an area of a little over four hectares. When they purchased the property, it contained an area of about one acre which had been cleared by the previous owner, comprising felled dead timber and old windrows of logs amongst the undergrowth. They started to slowly and laboriously clean up the area by cutting up the felled dead timber with a chainsaw and a handsaw and stacking it, with the intention of allowing the area to regenerate. 3 In about August or September 2005, Mr and Mrs Tzannes were visited by a number of members of the Rural Fire Service, including the fire captain, Mr Peter Raines. Mr Raines told them that the property is one of the worst for bushfire hazard and that they should carry out bushfire hazard reduction. After this meeting, Mrs Tzannes continued slowly to reduce the fuel load by hand, cutting up the felled timber using a chainsaw and then burning it or stacking it into piles. 4 On 15 December 2005, Mrs Tzannes was at the property with two friends when she was visited by two persons from the Blue Mountains City Council, Ms Deborah Friedewald and Mr Jim Sheehan. The two council officers inspected the property. Mrs Tzannes told them that the Rural Fire Service asked them to remove all the logs and material lying on the ground and that she had been doing it by hand. Ms Friedewald said that it would be easier to do it by machine - allegedly, the words "excavator", or "track excavator" or "traxcavator" were used - and that she would supply a list of contractors that do hazard reduction work and the appropriate type of direct machinery. Ms Friedewald also said that they could thin out the poorer saplings and allow healthy specimens to grow back. Ms Friedewald did not state that development consent was required to do the work. Mrs Tzannes says that Ms Friedewald expressly said that she could go ahead and do the work. 5 Mrs Tzannes did not know what a "track excavator" or "traxcavator" was, but she understood it to be like a small bulldozer. After not hearing anything further from the council, Mrs Tzannes contacted Mr Luke Carlon, who had a small bulldozer and agreed to do the work. She instructed him to push the dead and fallen timber into piles or windrows. The work took Mr Carlon three days. Mrs Tzannes was there on the first day and saw him working within the cleared area. The cleaning up by use of the bulldozer would and did cause soil disturbance and the destruction or removal of native vegetation over the area in which the work was carried out. 6 Mr and Mrs Tzannes went overseas, and on returning to the property in early November 2006 saw that Mr Carlon had not only piled up the felled timber into windrows, but had also pushed over recent regrowth and had pushed over some smaller saplings on the northern side of the cleared area - an area of about a quarter of an acre. The council had earlier written two letters to Mr and Mrs Tzannes about the clearing. Despite the sending of a written explanation by Mr Tzannes to the council of these events, the council prosecuted her for clearing without development consent as required by Sydney Regional Environmental Plan No. 20 - Hawkesbury-Nepean River. 7 Mrs Tzannes had no intention to commit any offence, but the offence in this case is a strict liability offence in which intention is not relevant. For reasons which follow, and, in particular, those in pars [48] to [54] below, although Mrs Tzannes is technically guilty of committing the offence to which she has pleaded guilty, the court orders that the charge be dismissed due to the trivial nature of the offence, Mrs Tzannes' excellent record of service in environmental and public causes and the circumstances in which it occurred and which I have briefly outlined.

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What was Mrs Tzannes told that she could do? 19 As noted above, the council's officers, Ms Friedewald and Mr Sheehan went to No. 260 Mt Irvine Road on 15 December 2005 and met Mrs Tzannes. Two other persons were also present, Mr Ian Svenson and Mr Mohsen Soltany-Zand. They went to the previously cleared area. Mrs Tzannes told the council's officers that the Rural Fire Services had told her "it was a fire hazard and we needed to clean it up" and that "we had to do hazard reduction because of the fire risk". After noting that Mr and Mrs Tzannes had been doing the work by hand, Ms Friedewald suggested using a machine to do it. According to Ms Friedewald's affidavit, she told Mrs Tzannes: "You can probably bring in a small rubber tracked backhoe or excavator to do the job. That would be much easier than doing it by hand". 20 Mrs Tzannes replied: "The captain from the fire brigade said he had a machine that could do it. He offered to come and do that". Ms Friedewald said that it might not be the right kind of machine. Again, according to Ms Friedewald's affidavit, Mrs Tzannes said: "Will you tell us what we can use? Will you tell us who to get in, who can do that work, can you give us the name of someone to use?". 21 Ms Friedewald replied: "Yes no worries. We can give you a list of contractors that do hazard reduction work in the mountains. We can tell you what machines to ask for when we call them because we don't want any more damage done..." 22 Ms Friedewald also states in her affidavit that she told Mrs Tzannes that she could do some selective trimming and "take out some of the poorer or suppressed trees to give a more open plant community". 23 Ms Friedewald also said: You need to make sure you don't do any more work down here until council contacts you with the names of approved contractors who could do the work and specifications on the type of machinery that would be appropriate to use. 24 According to Mrs Tzannes the conversation was as follows: Ms Friedewald: I feel sorry for you. You've inherited a big mess. You'll kill yourself coming up every second weekend or so, trying to clean this mess up by hand.

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What were Mrs Tzannes' instructions to Mr Carlon? 29 Mrs Tzannes did not receive the promised list of contractors from Ms Friedewald. She telephoned the council to speak to Ms Friedewald and to obtain the list. Ms Friedewald was not available. Mrs Tzannes was unaware that the council's website contains a list of contractors. She says that but for being told to get a contractor, she would have continued to clean the area up by hand. 30 Mrs Tzannes was told by one of her neighbours that Luke Carlon could do that sort of clean up work. She telephoned him in about August 2006. Mrs Tzannes told Mr Carlon that she had a lot of dead and fallen timber to be cleaned up. According to Mrs Tzannes, Mr Carlon said that he had a small bulldozer and it will do that sort of work. On 11 September 2006, Mr Carlon came to view the property. He described in evidence the area to be cleaned up: It was just an area of cut down trees, mainly regrowth sapling trees cut down. There was timber lying about and stumps and so on. 31 Mr Carlon estimated that the area was "about an acre". He described in his evidence the area around it in the following terms: The area around it was already affected by some of the stuff that had gone on years ago and there were some trees that had come over in the wind. There were some that were hung up and, you know, to make it safe for a bushfire the whole area had to be cleaned up and - but in the middle of the acre it was mostly all felled timber, there was not much left standing, but on the two outsides of that acre there was still a bit of scrub standing and I did explain to clean that up-- 32 Mrs Tzannes says that she gave no instructions as to how Mr Carlon was to do the cleaning up, other than to fulfil her request for the dead and fallen timber to be cleaned up; that is, pushed into piles or windrows. She says that she did not know how his bulldozer was to operate. 33 According to Mr Carlon, he said to Mrs Tzannes, "you know to clean that timber that's lying there I will you know, have to manoeuvre, take out some trees that are in the way". Mrs Tzannes says that she said to Mr Carlon that he was to "cause as minimal disturbance as possible" and that it was to be limited to what was on the ground, that is, old felled timber, and would not include any standing trees. Mr Carlon agreed that Mrs Tzannes said to him that he was to "cause as minimal disturbance as possible". In cross-examination Mr Carlon agreed that Mrs Tzannes' instructions were to limit the ambit of his activities "to the area which had been previously cleared". I am able to infer that Mr Carlon's reference to the area that had been previously cleared is a reference to the area of about an acre which he previously described. 34 I accept the evidence of Mr Carlon. It largely corroborates the evidence of Mrs Tzannes as to the instructions which she had given. Those instructions were, I find, to push the dead and fallen timber into piles or windrows, that he was to limit his activities to the previously cleared area of about an acre, and that he was to cause as minimal disturbance as possible. Despite being told by Mr Carlon that he would "have to manoeuvre, take out some trees that are in the way" - which I take as a reference to the area around the previously cleared area - the response of Mrs Tzannes was clear - namely, cause as minimal disturbance as possible, limited to the previously cleared area and limited to the old and felled timber on the ground, and not to include any standing trees. 35 Mr Carlon had estimated that the job would take him three days. It was agreed that he would come on the 26th, 27th and 28th of September 2006. Mr Carlon did not arrive until about 2:30 on the 26th of September 2006. Mrs Tzannes was there. It took time to unload Mr Carlon's bulldozer - which was the smallest bulldozer it is possible to have. Mrs Tzannes saw that it had "flat or rubber tracks". She could see from the house that Mr Carlon started to push up dead timber. At no time did she see him push any saplings or trees over. On the next day, Mrs Tzannes returned to Sydney, because Mr Carlon had informed her that he was busy then. On 30 September 2006, Mr and Mrs Tzannes went to the property and there was no sign of Mr Carlon and no evidence that he had done any further work. On 7 October 2006 Mr and Mrs Tzannes went overseas. 36 On their return from overseas in early November 2006, Mr and Mrs Tzannes became aware that the council had sent them letters dated 6 October and 25 October 2006 about the work that had been done on their land. 37 Mr Tzannes responded by letter dated 6 November 2006 outlining the circumstances in which the clearing occurred. At about the same time Mrs Tzannes visited the property and viewed the results of Mr Carlon's work. She saw that Mr Carlon had followed her instructions only insofar as he piled up the felled timber into windrows and in doing so he had also removed recent regrowth. She was surprised to see some of the smaller timber and saplings pushed over into the northern side of the previously cleared area.

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Sentencing considerations 38 The court must take into account the objective circumstances of the offence and the personal or subjective circumstances of the defendant when imposing a sentence: Veen v The Queen (1979) 143 CLR 458 at 490, Veen v The Queen (No. 2) (1988) 164 CLR 465 at 472. The objective gravity or seriousness of the offence is, of course, given primary consideration and matters subjective to the offender must not interfere with the imposition of a penalty that adequately reflects the seriousness of the offence: see authorities cited in Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at 215-216 [108] - [109] per Preston J. 39 The objective gravity or seriousness of the offence is reflected in the maximum penalty, and in sentencing an offender for a criminal offence the fundamental consideration is the degree to which, having regard to the maximum penalty, the offender's conduct offended against the legislative objective: see R v Peel [1971] 1 NSWLR 247 at 262. 40 As noted above, s 126 of the Act prescribes a maximum penalty of 10,000 penalty units, which means that the current maximum penalty is $1.1 million. The maximum penalty, of course, represents the worst possible scenario for the offence: Makarian v The Queen (2005) 228 CLR 357 at [31]. The offence in the present case is a long way from the worst possible scenario. 41 The objective seriousness of the offence includes a consideration of the harm caused: s 3A(g) and s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. This consideration in turn requires consideration of the objectives of the prohibition against clearing without development consent in the sub-catchment of the Colo River. The aims of the Sydney Regional Environmental Plan No. 20 include managing flora and fauna communities so that the diversity of species and genetics within the catchment is conserved and enhanced: cl 6(6). It is self-evident that the purpose of the prohibition against clearing is to preserve the quality of the catchment. There is nothing in the evidence in this case to suggest that the quality of the catchment had in any way been diminished or otherwise harmed by the present offence. 42 The reasons for committing an offence can be taken into account in measuring its objective seriousness: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366. The motivation was initiated by Mr Raines, the captain of the local Rural Fire Service who identified the area in question a fire hazard and that fact appears to have been accepted by the two council officers who visited the property on 15 December 2005. That is, the motivation was to clear up the dead and fallen timber which was the result of clearing by the previous owner. There was simply no utility in otherwise clearing the area, since it was of no use for any likely and immediate purposes or agriculture. I find, therefore, that the only objective was to reduce the fuel load, as advised by the Rural Fire Service. It was not to achieve anything else. 43 When imposing a sentence the penalty must reflect the need to deter the offender and other persons from committing similar offences: s 3A(b) of the Sentencing Procedure Act. There is a need, in particular, to uphold the system of development control, and recognise that the carrying out of development without the requisite development consent would undermine the system of development control: Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [35]. In the present case, there is no need for any element of specific deterrence. I am convinced that Mrs Tzannes is truly sorry for what has happened and it goes against the grain of logic to suggest that someone of her background would be likely to commit a similar offence. 44 It must also be borne in mind that the offence is one of strict liability. A strict liability offence that was committed intentionally, recklessly or negligently is objectively more serious than one not so committed. In the present case, however, Mrs Tzannes was given to understand by the two council officers who attended the property on 15 December 2005 that she could clean up the area, as advised by the Rural Fire Service, without the need to obtain written consent. Having then instructed Mr Carlon what to do and then having gone away after he started work, there seems to be nothing which Mrs Tzannes could have done when Mr Carlon went beyond his instructions and pushed into the northern edge of the previously cleared area. 45 The principle of even-handedness, or parity in sentencing, requires the court to have regard to the general pattern of sentencing in cases which can be viewed as judicially relevant to the case in hand, recognising of course that each case is determined upon its own particular facts: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701-703. 46 In Blue Mountains City Council v Carlon [2008] NSWLEC 296, Mr Carlon was charged with and has been sentenced for committing the same offence. Mr Carlon was formally convicted of the offence as charged, but no penalty was imposed other than an order to pay the prosecutor's costs.

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(d) any other matter that the court thinks proper to consider. 48 As to sub-s (3)(a), Mrs Tzannes is 67 years old, has been married for 42 years and is a psychotherapist by profession. She has an abiding interest in native bushland and environmental affairs, which was a reason why she and her husband purchased the land. When they purchased it they wanted to leave it as it was. Mrs Tzannes is and has been for at least 25 years a member of the following environmental organisations - the National Parks Association of New South Wales, Greenpeace, the Wilderness Society, the Australian Conservation Foundation and the Worldwide Find for Nature. She is also a member of Australian Bush Heritage. Her husband is a councillor of the Australian Conservation Foundation and a Governor of the World Wildlife Fund. Both Mrs Tzannes and Mr Tzannes are committed bushwalkers and have been involved in bushwalking for the last 26 years. Mrs Tzannes is a member of the following bushwalking clubs - the National Parks Association of New South Wales, the Coast and Mountain Walkers and the Bush Club. Over the last 26 years she has gone on bushwalking trips in all states of Australia, including over 26 national parks. 49 Mrs Tzannes has also been on bushwalking trips in Nepal, Sikkim, Laddakh, Tibet, the Peruvian Andes, the French Pyrenees, Mont Blanc, Chilli, Argentina, Greece and New Zealand. On three occasions she has been walking in a national park at a time when bushfires were burning in the park. She is able to recognise the conditions favourable for the start and spread of bushfires and is alive to the risk. 50 For the last six years Mrs Tzannes has been involved in voluntary assistance to refugees. The references from several prominent Australians tendered on her behalf attest to her voluntary work in this area and in environmental causes generally. One of her referees refers to "a career and a life devoted to helping the less fortunate and caring for the environment". The reference concludes: I have no hesitation in saying that she is one of the few really good and decent people I have ever encountered. 51 As to sub-s (3)(b), I find the offence in this case to be trivial. As noted above, there was no evidence of harm to the Colo River sub-catchment, the area had been largely cleared previously and it was always Mrs Tzannes' intention to remediate the previously cleared area. 52 As to sub-s (3)(c), the extenuating circumstances in which the offence was committed have been described. In short, Mrs Tzannes was told to clean up the area, which was a fire hazard, by the Rural Fire Service. She was told by the council's officers that she did not need any written consent to do so, she understood that the work could be done by a machine "like a small bulldozer" and that Mr Carlon had an appropriate machine. She instructed Mr Carlon what to do. However, she was not present when he went further than he was asked and pushed over recent regrowth and the smaller timber and saplings on the northern side of the previously cleared area. 53 As to sub-s (3)(d), the other matters to which I have regard are: (i) the plea of guilty; (ii) the fact that Mr Carlon did not receive any fine; (iii) that Mr and Mrs Tzannes were always prepared to remediate the area and offered to do so in Mr Tzannes' letter to the council dated 6 November 2006; (iv) that Mrs Tzannes has no criminal history; (v) that Mrs Tzannes has been publicly humiliated by the publicity of this prosecution; (vi) that graffiti was painted by hoodlums on the road outside the property with the words "environmental vandal" and an arrow pointing to their property; and (vii) that Mrs Tzannes was greatly stressed by the fact of this prosecution. 54 There is also a cost to Mrs Tzannes. She has generously agreed to pay the council's costs of $30,000 and has agreed to remediate the cleared area at a cost of between $13,500 and $15,000. 55 In my opinion, this was a comparatively minor offence by a first-time offender and for the reasons noted in pars [48] to [54] above, Mrs Tzannes will receive the benefit of s 10 of the Sentencing Procedure Act. 56 There remains one further matter for consideration. Mrs Tzannes has at all relevant times been willing to remediate the area. She has, moreover, agreed to a remediation plan. I am prepared to make an order accordingly. Orders 57 The formal orders are:

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