Burwood Council v Jarvest Pty Ltd

EXTEMPORE Judgment 1The defendant company is charged pursuant to s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (' EPA Act' ) by the Council with an offence involving the cutting down to ground level of 13 " native tallow wood " eucalyptus trees which were the subject of Council's tree preservation order ('TPO'). 2The offence occurred in stages between 16 April and 18 September 2010 at the Nissan Dealership Steve Jarvin Motors, 178-194 Parramatta Road, Burwood. 3The subject land is on the corner of Lucas and Parramatta Roads, Burwood. There are town houses adjacent at 12-14 Lucas Road, and most of the relevant trees were planted along the boundary between the townhouse property and the Jarvin property. A few others were on the Lucas Road frontage. 4The tree preservation order was adopted by the Council on 28 February 2006 and advertised during March 2006. It requires that persons who seek to do work to trees that are not exempt, must obtain Council's written consent. Native tallow wood trees are not exempt from the order. 5The company acquired the subject property in June and November 2006, and its dealings with the Council since then placed it clearly on notice of the existence and requirements of the TPO. The defendant is the trustee of the Jarvin Family Trust and leases the subject property to its related entity, Steve Jarvin Motors Pty Ltd. 6The eye-witness, Mr Jason Snape, who relevantly has environmental science qualifications, saw the trees cut down on the townhouse boundary on 16 April 2010. He deposes that the trees were 10-15m high. The remainder of the townhouse boundary trees were cut down between April and September and, on 18 September 2010 he observed that two trees along the Lucas Road frontage had also been cut down. All of these trees were in the rear car park of the car dealership. Mr Snape annexes to his affidavit before and after photographs. 7In the summons Council issued on 17 March 2011, it sought, in addition to the imposition of lump sum and daily pecuniary penalties, an order that the defendant plant, and maintain to maturity, new trees and vegetation in place of those removed, and to provide security for the performance of that order. 8Between the summons and the hearing 13 " super advanced " Lemon-scented Myrtle trees were planted at the defendant's premises on or about 26 May 2011 by New Life Landscaping (see Exhibit J1 ). These are acceptable to Council and are expected to grow fairly rapidly into somewhat of a hedge of 7-8m in height. As such they will not pose the same risk as arose from the trees they replace, and they will achieve a " gree n" border between the car yard and the neighbouring residential development. 9A plea of guilty was entered on the first return date, namely 29 April 2011, and the parties have since agreed upon a Statement of Facts ('SOF' - Exhibit B1 ) relevant to sentence. The prosecuting Council filed its primary affidavits on 17 March and 18 April 2011. The SOF was filed on 23 May 2011. The defendant then filed its affidavits on 25 May and 2 June 2011. The Council objected to the contents of some of that material and, on 16 June 2011, filed in reply a second affidavit from Joseph Tilley, Council's Tree Management Officer since 2003. 10Both sides helpfully filed in advance their written submissions on sentence, which they amplified orally at the hearing today. 11The maximum penalty for this offence pursuant to s 126(1) of the EPA Act is a fine of $1.1M plus a daily penalty of $110,000, which the prosecutor says would apply to the period 16 April 2010 to 26 May 2011. The defendant pleads that it offered to plant the replacement trees earlier and should not pay any daily penalty, simply for not having done so. 12In August 2008 Council issued a 12-month TPO permit to the defendant's contractor Axact Services Pty Ltd to remove three tallow wood trees and prune 13 others, and Axact carried out those approved works. 13On 2 March 2010 Council gave conditional approval to a development application for the construction on the Jarvin site of a two-level self-storage facility above the existing parking area to the rear of the property. One condition (No.10) drew attention to the TPO and its requirements for written consent. Another (No.14) required retention of existing street trees, provision of new trees if appropriate, and compliance with Council's Street Tree Management Strategy. Accordingly, the court finds that the defendant was on clear notice of the Council's concern and requirements in regard to trees, both on private property and in the public domain. 14Michael Jarvin, a director of the defendant company, participated in a formal interview with Council officers on 1 October 2010 in which he (1) admitted knowledge of the TPO, but asserted (2) that "four years " beforehand, Council had granted " permits for ongoing maintenance of the trees ", and (3) that his company had received many expressions of concern from the neighbours about the trees growing on the subject site. He said also that his " highest priority " was neighbourhood safety. 15Joe Lilley has appropriate qualifications and committed himself to the expert witness code of conduct. He is the Council officer responsible for the administration of the TPO on the Council's behalf, and it was he who issued the 2008 permit. He inspected the property on 4 August 2008 and took a photograph which he annexes to his affidavit. That photograph graphically illustrates how high the trees were then, and how close they were to the townhouses. He deposes that the trees were healthy at that time and required only minor pruning. The permit he issued on 25 August 2008 was valid for 12 months. 16When Lilley received an email complaint from Mr Snape on 20 September 2010, he carried out a further inspection of the property on 22 September. He observed the stumps and log debris of the trees which had been removed and he opines that those stumps and log debris showed that the trees remained healthy at the time of their removal. 17Lilley spoke to Steve Jarvin, who said that the trees were removed " because they were dangerous and three of them had fallen on neighbouring property ". He also stated that he had been told so by " a tree worker ", who is not identified to the court. 18Bonnie Kwan lives in townhouse No.2, 12 Lucas Road. She deposes to the closeness to her townhouse boundary fence of the trees which were removed. She stated that there had been six major incidents per annum since 2005, many causing damage to tiles, rubbish bins, and air-conditioning units. The trimming of the trees had exacerbated that problem. She expressed her appreciation for the " responsible action taken by [the Jarvin neighbour] in lopping the trees" and also for the Jarvins' approachability and expedient help with making good any damage caused by falling tree debris . She annexed to her affidavit photographs showing (1) how close her townhouse is to the Jarvin boundary and (2) a limb which clearly had fallen over her fence and come to rest very close to her townhouse. 19Dennis Monaco lives at 12-14 Lucas Road, adjacent to Ms Kwan. He is the chairman of the Owners Corporation at the townhouse project. He opines that the line of trees was approximately 19m tall and that foliage and large branches dropped regularly. The defendant pruned them from time to time, but pruning only exacerbated the problem which had now been resolved totally by the cutting down of the offending trees. He was at the time of his affidavit negotiating for a more suitable species to replace the removed trees, and the court notes again that the trees planted in May of this year apparently will grow to 7-8m only. 20Michael Jarvin, a director of the defendant company, annexes to an affidavit, memoranda of understanding between the defendant and its trading arm on the one hand, and the police and the Council on the other. Under this arrangement, a Nissan Tilda motor vehicle is made available to the Council to assist in the delivery of its community services programmes. 21In reply to the Monaco and Kwan affidavits, Joe Lilley deposes that the Council has no record of any complaint from the townhouses about the trees at any stage. The owners of those townhouses or the defendant could easily have approached the Council to solve any problem experienced with the trees. On the occasion with which he was directly involved in 2008, the Jarvin interests had retained Axact Services Pty Ltd, which is an accredited arborist, but the contractor used on the removal project " AAA Affordable Tree Loppers and Tree Surgeons" does not hold the appropriate qualifications to advise customers or the public on matters of tree risk. 22The defendant also relies upon affidavits from its accountant, Adrian Abbott, and its architect, James Phillips. Abbott deposes to the company's financial position, and Phillips to its sensitivity to the needs of the townhouse owners. Both seek to give second-hand evidence of the good character of the defendant and the Jarvins. 23The appropriate sentencing principles to govern the court's decision in this matter are well established and regularly applied in cases before this court. I do not need to set out in full the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 ('CSP Act'), nor the statements of principle made in leading cases on sentencing, such as Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 and Pittwater Council v Scahill ('Scahill') [2009] NSWLEC 12; (2009) 165 LGERA 289. Scahill was a case relevantly involving the cutting down of trees, but by an arborist. 24I have also referred to Pain J's earlier decision in Manly Council v Taheri [2008] NSWLEC 314, which is factually closer to the present case, albeit that five large trees were cut down in that case as part of a wider, unsympathetic land clearing operation which gave rise to three charges. 25In terms of s 3A of the CSP Act , this is clearly a case for public denunciation of conduct, adequate punishment, and both specific and general deterrence. 26In terms of s 21A(2) of the CSP Act , two aggravating factors are disclosed by the evidence. By taking the local law regarding tree management into its own hands, the defendant clearly set out to save itself the financial costs and inconvenience involved in compliance with the approval process and any remedial programme the Council may have prescribed as an alternative to the total removal of the trees (see s 21A(2)(o)). Also, the planning and organisation involved in such a deliberate programme of tree removal over some months, by an agent lacking the qualifications required by the Council, would bring this offence within s 21A(2)(n). The company was on notice of the TPO and had earlier followed its processes. On that occasion it used a respected contractor. Neither the defendant, nor its concerned neighbours, at any stage sought the Council's assistance in respect of the alleged ongoing problems caused by the trees, which, on Ms Kwan's evidence, were in evidence well prior to the 2008 approval. 27On the other hand, in terms of mitigating factors, including those covered by s 21A(3), the court notes (1) the defendant's concern about the history of falling limbs and debris and possible personal and property harm flowing from such events, (2) its clean environmental record and community commitment, (3) its very early plea of guilty, (4) the remorse expressed by its solicitor in the submissions on sentence, (5) its cooperation with the prosecutor, and (6) its agreement to pay the prosecutor's costs. The prosecutor concedes that the defendant is a " good corporate citizen ". 28In terms of " objective gravity " of the offence, I accept the prosecutor's submission that this case involves a large number of very large well-established, mature and healthy trees, of some quality and beauty. The environmental damage caused will not be fully repaired for some years, while the replacement plantings mature. The risk of such environmental harm was clearly foreseeable on the defendant's part. As the relevant land owner, it was in total control of the tree removal operation, at a time when it had available to it suitable expertise familiar with the trees, and less offensive, practical alternative courses of action, which it did chose not to pursue. It has brought to court no expert evidence to support the case that it removed trees which were dangerous and needed to be cut down. 29In all these circumstances I reject Mr Callanan's submission that some order under ss 9 or 10 of the CSP Act should be considered. I am of the firm view that a substantial fine is called for. Under s 6 of the Fines Act 1996 it is necessary for the court to consider the financial means of an offender, but I am not satisfied on any of the evidence provided by the defendant's accountant that the defendant lacks the capacity to pay an appropriately discounted fine. Some degree of financial stress is a necessary component of an appropriate penalty. 30I have determined that the appropriate fine is $60,000 discounted by 25% on account of the utilitarian value of the defendant's early plea of guilty, its acknowledged good record and reputation, and other mitigating factors, including the voluntary undertaking of remedial plantings. 31The orders of the court will therefore be: