Canterbury City Council v Saad

Land and Environment Court (NSW)|2000-12-22|Before: Bignold J, Dowd J

CITATION : Canterbury City Council v Saad [2000] NSWLEC 278 PROSECUTOR: Canterbury City Council PARTIES : DEFENDANT: Saad FILE NUMBER(S) : 50022 of 2000 CORAM: Bignold J KEY ISSUES: Environmental Offences :- carrying out development in contravention of condition of development consent - essential elements of the offence. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 125, s 76A(1) CASES CITED: Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79; Rao v Canterbury City Council (2000) NSWCCA 471 DATES OF HEARING: 6/10/00, 23/10/00 DATE OF JUDGMENT: 12/22/2000

PROSECUTOR: Mr A Hawkes, Solicitor SOLICITORS Pike Pike and Fenwick LEGAL REPRESENTATIVES: DEFENDANT: Mr T Howard, Barrister SOLICITORS Legs Lawyers

The Defendant has pleaded not guilty to a charge of an offence against s 125 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that "on or about 23 December 1999 (he) did implement development consent No 589/98 for the demolition of two dwellings and construction of 7x 3 bedroom townhouses at 2-4 Broadway, Punchbowl contrary to condition 40 of the said consent".

The Summons particularises the charge by reciting the terms of condition 40 and by averring the Defendant's contravening conduct. These particulars are as follows -

Condition 40 is in the following terms - 40. The existing 2x Paperbark (Melaleuca decora) located on the south-east boundary and numbered 3 and 4 on the attached site plan, Yellow-wood (Podocarpus falcatus) and 2x Crepe Myrtles (Lagerstroemia indica) are to be retained. A suitable protective barrier is to be erected around the tree (s) prior to construction and is to be maintained during building operations. A bond of $1000.00 be paid to Council prior to development to ensure the trees are protected. Details of the barrier are to be included in the Landscape Plan.

The Defendant's contravening conduct as averred is as follows:

In that the Paperbarks (Melaleuca decora) numbered 3 and 4 on the site plan attached to the said consent were not retained in so far as tree number 4 was removed and tree number 3 was severely lopped leaving only the base and a section of the trunk damaging the tree beyond repair on or about 23 December 1999.

At the end of the trial, Defence Counsel submitted that the evidence had not established beyond reasonable doubt - (i) that the offence had been charged within the statutory limitation period of 6 months from the commission of the offence being the period that is prescribed by the EP&A Act , s 127(5) and (ii) that the Defendant was criminally responsible or liable for the offence charged.

Since the legal sufficiency of the form of the charge laid in the present case has recently been upheld (though not without criticism) by the Court of Criminal Appeal in Rao v Canterbury City Council (2000) NSWCCA 471 (16 November 2000), when considering a charge formulated in virtually identical terms, I do not stay to comment upon the sufficiency of the charge in the present case. Nor do I need to recite the terms of the EP&A Act, s 125. However, because of its obvious bearing upon the determination of the present charge, I do draw attention to the majority view in Rao that it is the EP&A Act, s 76(2) (now re-enacted as s 76A(1)) that contains the relevant statutory prohibition in a charge such as the present, while it is the EP&A Act, s 125(1) that creates the offence referable to such prohibition: see pars 23, 24, 29, 30 and 32 of the President's judgment (which was agreed in by Dowd J).

Additionally, Defence Counsel has submitted that the Prosecution case had failed to establish in the evidence an essential factual ingredient of the charge, namely the existence of the "site plan" referred to in Condition 40 of the development consent. The point, though technical, is said to be fatal to the success of the Prosecution.

It is appropriate that firstly I consider the Defence submission that the charge has been brought outside the statutory limitation period since if this submission succeeds, the prosecution must fail in limine.

B. WAS THE CHARGE LAID WITHIN THE PRESCRIBED LIMITATION PERIOD?

(5) Proceedings in the Court in its summary jurisdiction in respect of an offence against this Act may be commenced not later than 6 months after the offence was alleged to be committed, except as provided by subsection (6).

It is common ground that the exception provided in subsection (6) has no application in the present case. Accordingly, the Summons having been filed on 16 June 2000 , it must be established by the Prosecution that the offence was committed on or after 16 December 2000 .

In Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 the Chief Judge at Common Law, in giving the judgment of the Court of Criminal Appeal, made the following observations at 80 (in footnote 2) endorsing the correctness of the concession made by the prosecution that it bore the onus of establishing that the proceedings alleging the offence had been commenced within the statutory limitation period:

The concession was correctly made: Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at 175, 179: R v Lewis [ 1979] 1 WLR 970 at 973; [1979] 2 All ER 665 at 667. Although the limitation period does not constitute an element of the offence, once the issue is raised (and however it may be raised), the prosecution bears the onus of establishing beyond reasonable doubt that the offence was committed within the relevant time before the proceedings had been commenced; R v Lewis (at 973; 667); Rabczynski v Morrison [1988] WAR 71 at 73-74; R v Cooling [1990] 1Qd R 376 at 378-379.

In the present case, the charge alleges that the offence was committed " on or about 23 December 1999 " (which is within the statutory limitation period measured backwards from 16 June 2000 when the proceedings were commenced). The Defence has raised the issue on the evidence as to whether the Prosecution has established beyond reasonable doubt that the offence was committed on or after 16 December 2000 (being the commencement of the 6 month statutory limitation period).

The Prosecution evidence concerning the date upon which the offence was committed is entirely founded upon what is said to be an admission made by the Defendant in a telephone conversation instigated by Ms Morgan, the Prosecutor's Landscape Architect (who is the informant for the Council in the present prosecution) on 19 April 2000. (As will be presently appear, Ms Morgan had previously engaged in ongoing discussions with the Defendant and/or his brother (they are co-directors of a family building company) since they had first discussed with the Council on 7 January 2000 the question of the removal of the trees from the development site.

Ms Morgan deposes to this conversation in par 8 of her affidavit sworn 16 June 2000 which states the following:

I said: Could you confirm that you were on the site on 23 December 1999 during the demolition of the existing dwellings and also what happened with respect to the trees which were removed

He said: Yes. I was there with the demolition contractor and was instructing him using the architect's plans. The plans show the trees as being to be removed. We were just going by the plans from the architect. It was not until Norm came to the site and informed me that the trees were not supposed to be removed that I realised that a mistake had been made. We are very sorry for the mistake and are prepared to pay any costs or fines rather than go to Court over the matter

Defence Counsel had unsuccessfully initially objected to this evidence being admitted on the basis that the evidence was improperly obtained within the meaning of the Evidence Act 1995 , s 138(1) . Later in the course of cross-examination of Ms Morgan the objection was renewed but I admitted the evidence over the Defence objection, in the exercise of the discretion conferred by s 138(1) being of the opinion that the desirability of admitting the evidence outweighed the undesirability of admitting it. In so concluding, I considered that the balance of the matters enumerated in s 138(3) favoured admissibility. I also had particular regard to the fact that at the time of the conversation, the Defendant was probably (almost certainly) aware of the Council's earlier decision (which had been communicated in a Council letter to him and was recorded in the Minutes of the Council - it had additionally been communicated earlier to the Defendant's brother, the co-director of the family building company) to prosecute for an offence against the EP&A Act in respect of the non-retention of the two trees nominated for retention in condition 40 of the development consent. In so concluding, I was satisfied that Ms Morgan, in speaking to the Defendant on the telephone on 19 April 2000 was relevantly engaged in " official questioning " in terms of the Evidence Act 1995 , s 139(1) and that because she did not administer a caution to the Defendant, the admission made by the Defendant was relevantly "improperly obtained evidence " within the meaning of the Evidence Act , s 138(1).

Under cross-examination, Ms Morgan gave the following evidence concerning the conversation she had with the Defendant as deposed to in par 8 of her affidavit.

Q. When you spoke with the defendant you say you asked him whether he was on site on 23 December 1999 during the demolition of the existing dwellings and also what happened with respect to the trees which were removed. You never referred then to the particular trees, tree number 3 and tree number 4, did you? A.. No, but I'm sure we were both aware that that's what we were talking about.

Q. Well you know full well that there were other trees that were removed, don't you? A. Yes.

Q. And you know full well that those other trees were removed during the demolition of the existing dwellings" A. Yes.

……………. Q. Returning to the conversation that you had with Mr Saad on 19 April. I want to suggest to you that your conversation with Mr Saad could readily be consistent with Mr Saad discussing with you trees other than tree number 3 and number 4. What do you say to that? A.. I didn't believe the conversation was about other trees at all.

Q. You don't suggest do you that you specifically referred to trees 3 and 4? A. No.

The Defendant, in his evidence-in-chief gave the following evidence -

Q. Mr Saad do you recall having a conversation with Michelle Morgan of the Council on 19 April 2000?

Q. What is your recollection of the conversation that you had with Miss Morgan on 19 April?

A. She asked me if I was on the site when we remove the trees.

A. And I said, yes, the two trees. We had a contractor and I show him to pull out the stump.

Under cross-examination, the Defendant gave the following testimony -

Q. I say in the light of an application to modify the conditions relating to two trees to be retained, the context which has been going on for a couple of months about these two trees, why when she rings you up, do you assume that she's talking about other trees than the ones about which you've been writing to Council for the last three months? What made you assume she's just talking about the two trees perfectly lawfully removed, no fuss, no bother-- A. Because she asked me if I was on the site the day the contractor pull out the trees and I said yes I was and I was talking about those trees which as we took the stump off, not the ones still there. She not going to ask me about the tree which is still there.

Q. But this is in the context you've just spent two or three months trying to get a condition varied which required the retention of the two trees, but you assume when she rings you up she's talking about two separate trees? A. Yeah, but the tree - she was talking about the contractor.

Q. In your conversation with her did you talk at all about the, what I'll call trees 3 and 4? A. No.

Q. Can I ask secondly when you were setting out the site for the contractor, did you put any protective barriers around trees 3 or 4? A. No.

Q. Why not? A. Because number 3 was chop off and there wasn't any number 4.

Q. But number 3 was there earlier was it not? A. Number 3?

Q. Yes. When your application was in 3 was there wasn't it? A. Yes, yeah, yes.

Q. And then you got your consent? A. Yes.

Q. And you go on to the site and you don't put any barriers-- A. I wasn't that time it's necessary to put it because we had to - we didn't have any machinery, heavy machineries.

Q. So whenever this tree was removed there'd have been no barrier around it" Or lopped shall I say? A. No.

Finally, in re-examination, the Defendant gave the following testimony -

Q. Mr Saad you were asked a few moments ago why it was when Miss Morgan spoke to you that you didn't assume that she was talking about tree 3 and 4 and you answered, as I recall, that she asked you about when the contractor was on site. Do you recall that? A. Yes sir.

Q. Is that how she opened the conversation with you do you recall? A. Yes sir.

Q. So, was it the case that you were on site when the existing houses were demolished? A. Yes sir.

Q. And was it on that day that trees number 1 and 2 were removed? A. No sir.

Whereas it is apparent that the Defendant's testimony concerning his recollection of the telephone conversation with Ms Morgan on 19 April 2000 proffers an understanding on his part different from that held by Ms Morgan (which suggests the conversationalists may to some extent have been at cross purposes) it is, in my judgment, highly significant that the Defendant did not, in his testimony, deny either in express terms or by implication, Ms Morgan's version of the conversation.

Moreover, some of the content of Ms Morgan's version of what the Defendant said to her is corroborated by the testimony of the Defendant's brother Mr Nadim Saad who gave evidence in the Prosecution case when he gave the following evidence-in-chief:

Q. Do you have any recollection of going to the site and advising the Defendant that a mistake had been made about the 23rd December? A. Yeah. He call me and gave me some you know, trees on corner been chopped off and I went there and he knew that this one should be chopped off and I went there and I seen what was chopped off you know.

Q. I see. And can you recollect when that was? A. Yeah, November/December, that's some time, yeah.

Q. About November/December. And do you have any recollection after that of going to Council to discuss how to modify the development plans as a result of them being cut off? A. Mm yes.

Q. And what's your recollection of that? After Christmas, before Christmas? A. I'm not sure. I think after Christmas.

Q. And do you have any recollection of meeting with Miss Morgan at such time? A. Sorry?

Q. Miss Morgan is the lady-- A. Oh yes, yes.

Q. You do? A. Yeah. When my brother call me about the tree, we went there and we tell her what happen about trees.

Q. So some time in November/December your brother called you? A. Yes.

Q. You go to the site and he says words to the effect, they've been cut down? A. That's right.

Q. You then sometime subsequently go for a meeting at Council offices and speak to Miss Morgan? A. That's right, yes.

Q. And can you summarise the effect of that conversation with Miss Morgan? What were you seeking to achieve, what were you trying to do? A. Well we went to tell her the tree was chop off and we don't how it's - what happened you know, we cut it you know.

Q. Was the reason in any way related to how close they would be to the proposed building?

Q. Do you know the reasons why those trees were cut down? A. No.

Q. So as far as you know there is no reason why they were cut down? A. No.

Having given this testimony, Mr Nadim Saad was asked a little later in his evidence about the telephone conversation he had with Mr Lindsell (the Council's Town Planner) on 19 April 2000. Mr Lindsell's affidavit (par 14 and par 15) had deposed to the content of this conversation (in fact, there were two conversations on the same day) but the Defence objection to the paragraphs led the Prosecutor to concede that the content was hearsay and could not be relied upon by the Prosecution to prove the truth of the contents of the conversations. It was in these circumstances that the Prosecutor announced that Mr Nadim Saad had been subpoenaed to give evidence for the Prosecution and that it was anticipated that his oral testimony would deal with the conversations deposed to by Mr Lindsell.

This anticipation was not to be fulfilled because Mr Saad gave the following testimony:

Q. Do you recollect a conversation you had with Mr Lindsell on or about 19 April, on the telephone? A. Yes.

Q. Now he says that at that time - well I'll put it to you that at that time you said the trees were removed at the same time as the house was demolished and this happened before Christmas. Would that be correct? A. I don't know.

Q, And did you say anything about where your brother was at the time this happened? A. I don't remember the--

Further corroboration of the content of Ms Morgan's evidence is provided by the approved development application plans ( Exhibit 2 ) which show the trees (apparently required to be retained by condition 40) within a cluster of four trees collectively noted on the plans " to be removed ". In this respect, condition 12 of the conditions of the development consent should be noted, it providing as follows:

The development being carried out in accordance with the amended plans, specifications and details dated 28 May 1999 except where amended by the conditions specified in this Notice.

Finally, I should note that further corroboration of the content of Ms Morgan's evidence is provided by the vicarious admission contained in the Defendant's Architect's letter to the Council (which letter is recited in par 36 below).

The Defendant also gave evidence concerning the circumstances in which trees were cut down or removed from the development site (including the two trees located in the south-eastern corner of the site which condition 40 required to be retained). However, ultimately I have been unable to accept his testimony, which I found to be confusing, evasive and generally unreliable and unconvincing.

Having so evaluated the Defendant's evidence, I must now decide on the evidence, what was the content of the telephone conversation on 19 April 2000 between Ms Morgan and the Defendant and whether in particular the Defendant made the admissions that have been attributed to him.

Ultimately, I am satisfied that Ms Morgan's evidence of what the Defendant said in the course of that conversation, is reliable and truthful evidence and is worthy of confident acceptance, more especially so because it was not denied or rebutted by the Defendant's evidence concerning the content of the conversation.

Accordingly, I am satisfied beyond reasonable doubt that the two trees located in the south-eastern corner of the development site (which were required by condition 40 to be retained) were cut down and/or removed from the development site on or about 23 December 1999 as is alleged in the charge brought against the Defendant.

It follows that, I must reject the Defence submission that it has not been established by the Prosecutor beyond reasonable doubt that the present proceedings were commenced within six months of the commission of the alleged offence.

C. HAS THE DEFENDANT'S GUILT BEEN PROVEN BEYOND REASONABLE DOUBT?

The Defence submission was to the effect that if the Court were to find that there has been a contravention of Condition 40, it could not find the Defendant guilty of the offence charged unless the Court were satisfied beyond reasonable doubt that he had himself done the act that involved contravention of Condition 40 or alternatively, that he was vicariously liable for the act of the person (employee or contractor) who had done the act that involved the contravention of Condition 40.

In my opinion, the Defence argument suggesting the two alternative bases upon which the Defendant might be held to be guilty of the offence charged, and the supporting exposition of the relevant principles of criminal responsibility, need to be radically reviewed in the light of the Court of Criminal Appeal's recent decision in Rao. In particular, the following holdings in Rao need to be accommodated in any proper analysis of the ambit of criminal responsibility arising from a charge, such as the present, involving an offence against the EP&A Act, s 125 by reference to the essential ingredients of the EP&A Act, s 76A(1) - (i.) the offence is one of strict liability: par 53 of the President's judgment; (ii.) some conditions of development consent (eg a prohibition against cutting down existing trees) are capable of breach in the course of implementation of the consent: par 21 of the President's judgment; (iii.) the offence charged against the defendant could be established upon the basis of accessorial liability: par 31 of the President's judgment; (iv.) the EP&A Act, s 76A(1) (previously in force as s 76(2)) prohibits any person from carrying out a development for which consent is required unless the development is carried out in accordance with the provisions of any conditions subject to which consent has been granted. "To the extent that the defendant engaged in carrying out the development and where development was not carried out in accordance with the conditions, there was a contravention of s 76(2): par 78 of the judgment of Austin J.

The foregoing holdings in Rao, in my opinion, are directly relevant to the question of the Defendant's criminal responsibility in the present case, and so applied they would, in my opinion, support a finding of guilt by the Defendant merely upon proof that (i) he was carrying out the approved development; and (ii) in carrying out that development, there was a relevant contravention of a condition of the relevant development consent. In so concluding, I am of the opinion (despite slight linguistic variation) that there is no substantive difference in meaning and effect between the EP&A Act, s 76A(1) and its predecessor (s 76(2)) that was considered in Rao.

In passing, I would note that a curious feature of the Court of Criminal Appeal's decision in Rao is that although both charges were for offences against the EP&A Act, s 125 (and hence both were offences imposing strict liability), the appeal in respect of the first charge was determined on the basis of there being a factual issue whether the appellant had authorised the cutting down of the trees (see par 11 and par 34 of the President's judgment) whereas the appeal on the second charge was determined on the basis of the offence imposing strict liability (see par 55 of the President's judgment).

However, it simply may be that the curiosity is to be explained on the basis of the different issues that had been raised at the trial of both charges.

Having established the proper ambit of criminal responsibility created by the offence charged in the present case, I am now in the position to consider the evidence and to make relevant factual findings.

Firstly, I should note the following relevant facts that are not in dispute (and that have been established beyond reasonable doubt): (i.) the Defendant and his brother Mr Nadim Saad are co-directors of the family building or construction company; (ii.) the Defendant obtained from the Council on 17 August 1999, the grant of development consent for the "demolition of two dwellings and construction of 7x 3 bedroom town houses" on land known as Nos 2 - 4 Broadway, Punchbowl (the development site); (iii.) the development consent was granted subject to a number of conditions, including the following conditions relating to existing vegetation and landscaping requirements -
Removal of the existing 2x Paperbark (Melaleuca decora), located in the centre of proposed rear units and patio and numbered 1 and 2 on the attached site plan and Cypress (Cupressus glauca) on the site is conditional on their replacement with suitable 100L specimens, to be located at an appropriate position, preferably to the front of the development.
The existing street tree, Sweet Gum (Liquidambar styraciflua) is to be protected during construction. Care should be taken when driving trucks near the tree to avoid soil compaction, trunk and branch damage.
A separate application is to be made to the Council's Tree Preservation Officer regarding the pruning of the Paperbarks (Melaleuca decora) and Yellow-wood (Podocarpus falcatus) on the development site. Work may only be undertaken if written approval has been granted.
The existing 2x Paperbark (Melaleuca decora) located on the south-east boundary and numbered 3 and 4 on the attached site plan, Yellow-wood (Podocarpus falcatus) and 2x Crepe Myrtles (Lagerstroemia indica) are to be retained. A suitable protective barrier is to be erected around the tree(s) prior to construction and is to be maintained during building operations. A bond of $1,000 be paid to Council prior to development to ensure the trees are protected. Details of the barrier are to be included in the Landscape Plan.
The Landscape Plan shall indicate as much of the existing vegetation as possible and include all significant vegetation to be removed or retained. (iv.) on 7 January 2000, the Defendant and his brother attended the Council's office and met with Ms Morgan, Landscape Architect, to discuss the question of the removal of two trees located in the south-eastern corner of the development site; (v.) at that meeting, Ms Morgan arranged with the Saad brothers to attend the development site on 11 January 2000; (vi.) on 11 January 2000, Ms Morgan attended the development site and observed that one of the two trees in the south-eastern corner had been severely lopped leaving only the base and a section of trunk remaining and the other tree had been completely removed from the site; (vii.) on 18 January 2000, Ms Morgan returned to the development site and took photographs. The Saad brothers were also at the site, together with the Private Certifier who asked Ms Morgan "what will happen now?" She informed him

An application for modification will have to be lodged with the Council (ix.) on 11 January 2000 , the Defendant lodged with the Council an application pursuant to the EP&A Act , s 96 to modify the development consent granted for the development site which application described the modification as " minor " (in terms of s 96(1) and provided the following details of the modification:

The removal of two existing trees on south-east corner as shown on original submitted document DWG A-02 Dev A and B. The Development remains unaltered, however these trees require to be removed to allow for construction of approved development. Replacement landscaping to council's requirements can be catered for. We trust this meets with your approval and look forward to your early reply. (x.) on 3 February 2000 , the Council's Development Assessment Panel determined the Defendant's modification application by refusing approval and resolving that legal action be taken in this Court against the Defendant for contravening condition 40. (xi.) on 3 February 2000 , Mr Lindsell informed the Defendant's brother by telephone that the Council's Development Panel had that day decided to refuse the modification application and to take proceedings in the Land and Environment Court for breach of condition 40. Mr Saad had responded by saying, inter alia, " I accept the determination of the Panel. I am responsible for construction and therefore I am responsible for the removal of the trees "; (xii.) on 8 February 2000 , the Defendant lodged with the Council a " Review of Determination of Development Application " supported by two letters - one from Paul dos Santos, the architect acting for the brothers Saad and the other from Stephen Roumanos, the Saad's Landscape Consultant. Mr dos Santos' letter includes the following statements:

The above mentioned proposal was approved by council with condition No. 40 stating that 2 Paperback trees on the south-east corner be retained.

As the site was being cleared in preparation for excavation these trees were removed as they were in the location of required footings. To have retained these trees would have not been possible due to their proximity to the approved building.

My client is prepared to plant any trees as part of the development to council's satisfaction in return for the removal of the above mentioned trees. As stated previously there was no conceivable manner to retain the existing trees. There was no ill intent on behalf of my client to remove any trees, they were just simply preparing the site for construction and were unaware the removal of the two trees we a major issue.

With regards to the proposed development at 2-4 The Broadway, Punchbowl. I have advised my clients for the removal of the existing 3 Melaleuca decoras to be removed upon council's permission.

One of the trees being located in the centre of the site and the remaining two at the rear of the site to the right hand side being the two in question. I have found these trees to be within close proximity of the proposed development and will interfere with the proposed stormwater lines. As a result of these problems, I have advised for he removal of these two trees to take place on the conditions that they are replaced with three 100L trees specified on the landscape plan submitted to council. (xiii.) on 9 March 2000 , the Council's City Development Committee considered the Defendant's request for reconsideration. It decided to refuse the request and to re-affirm its decision that legal action be taken in the Land and Environment Court against the Defendant for breach of Condition 40; (xiv.) by letter dated 15 March 2000 , the Council notified the Defendant of its decisions on his request for reconsideration; and (xv.) on 19 April 2000 , Ms Morgan had the telephone conversation with the Defendant that I have earlier recited.

On the basis of the abovementioned facts, I am satisfied beyond reasonable doubt that the Defendant is criminally responsible for the offence charged inasmuch as it is established beyond reasonable doubt that (i) he was the person who obtained development consent; (ii) he was a co-director with his brother of the building company undertaking the development; (iii) he was relevantly engaged in carrying out the approved development; (iv) when, in the course of that development activity, the two trees located in the south-eastern corner of the development site were cut down and/or removed in contravention of condition 40. My ultimate conclusion of the Defendant's criminal responsibility for the offence charged is directly supported by the holdings of the Court of Criminal Appeal in Rao to the effect that (i) the offence charged imposes strict liability; and (ii) criminal liability is attracted by the person who implements the development consent (eg by carrying out the approved development or commencing to carry it out) otherwise than in accordance with the relevant conditions of consent.

Accordingly, on the authority of the decision in Rao, it is not necessary in my opinion, for the Prosecution in the present case to establish that the Defendant either (i) personally contravened condition 40 by failing to retain the nominated trees or (ii) gave instructions to an employee or contractor to cut down and/or remove the trees, thereby creating the result that condition 40 was contravened (because the nominated trees were not retained).

However, if the decision in Rao be put aside for the moment merely for the purposes of argument, and if it be accordingly assumed that the Prosecution must prove against the Defendant, direct or accessorial involvement in the contravening conduct or alternatively must prove that he was vicariously responsible for the actions of his employees or contractors, the evidence that I have summarised above, together with the evidence of the Defendant and of his brother (which I shall presently briefly mention) satisfies me beyond reasonable doubt that the Defendant is criminally responsible for the contravening conduct.

I need only refer to those parts of the evidence of the Defendant which is corroborated by the testimony of his brother) that it was the Defendant (i) who hired the demolition contractor; (ii) who was responsible for on-site activities (including the clearing of the land) on the development site; and (iii) who gave the demolition contractor instructions.

When this evidence is combined with the admissions that were made by the Defendant in his conversation on 19 April 2000 with Ms Morgan that he was on site with the demolition contractor, giving him instructions on the basis of the content of the approved plans (Exhibit 2), which plans contained notations for the removal of all four existing trees located in, or a little removed from, the south-eastern corner of the development site, it is clear beyond reasonable doubt, in my judgment, that it was the Defendant who was directing, and who was therefore responsible for, the works that were being carried out on the development site, in implementation of the development consent.

I have earlier stated why I ultimately found the Defendant's evidence on the question of when the contravening conduct was committed, to be confusing, unconvincing and unreliable. I have reached the same conclusion in respect of the Defendant's testimony on the question of the identity of the person(s) who cut down and/or removed the two trees located in the south-eastern corner of the development site which had been nominated by condition 40 for retention. In this respect too, I find Ms Morgan's evidence of the admissions made by the Defendant to be credible and reliable and acceptable. Of course, in a fundamental sense, the identity of the person who cut down and/or removed the relevant trees is irrelevant to proof of the offence charged against the Defendant. As I have earlier held, that charge is established by proof that the person charged implemented the development consent by carrying out the development otherwise than in accordance with the conditions of consent: Rao.

D. THE EFFECT OF THE PROSECUTION EVIDENCE NOT INCLUDING THE PLAN THAT IS REFERRED TO IN CONDITION 40

The Defence submission (admittedly "technical") is to the effect that the prosecution must fail because the Prosecution did not (presumably on account of some inadvertence) introduce into evidence "the attached site plan" referred to in condition 40.

The fact of the grant of development consent and the terms of that consent were proved by Mr Lindsell's affidavit (par 3) annexing a true copy of the Notice of Determination given by the Council pursuant to the EP&A Act. However, the annexed copy did not include the "attached site plan" (referred to in Condition 40) and that plan was never introduced into evidence.

There were, however, other plans introduced into evidence showing the trees on the development site, namely (i) the approved amended development application plans (Exhibit 2) and the survey plan (Exhibit 3) that accompanied the development application. Both these plans indicate by appropriate notation and depiction, the presence of existing trees on the development site introducing a cluster of three trees located in the south-eastern corner of the site.

However, unlike the assumed content of the "attached site plan" (referred to in Condition 40), the botanical names of the depicted trees are not noted on the plans (Exhibits 2 and 3) and the trees are not numbered.

Moreover, Ms Morgan's affidavit (par 2) annexes a true copy of a "site and set out plan prepared by Impact Architects" which plan does contain notations of the botanical names of the existing trees located on the subject site and numbers the cluster of three trees at the south-eastern corner of the development site and another tree a little removed from the cluster. The notation is as follows: "4x Melaleuca Decora" and the trees are numbered 1, 2, 3 and 4, trees numbered 3 and 4 being adjacent to the southern boundary of the development site in the south-eastern corner, and trees numbered 1 and 2 being a little removed towards the centre of the development site. Apart for the existence of these notations, the content of that plan is very similar to the "site and setout plan" included in the approved amended development application plans (Exhibit 2). For example, both plans are titled "site and setout plan" and both plans bear the same drawing number "A - 02" except that the plan in the approved amended development application plans is marked Revision "B".

In her affidavit (par 2) Ms Morgan states that at the first meeting she had with the Saad brothers on 7 January 2000 at which they had discussed the two trees in the south-eastern corner of the development site, the trees discussed were the trees marked with the numbers 3 and 4 on the plan that she annexed to her affidavit.

I am left in no doubt on the evidence that the Defendant knew which two of the cluster of three (or four) Melaleuca decora trees were required by condition 40 to be retained (and which two trees were permitted by condition 37 to be removed). He himself described them in his modification application as "two existing trees on south-east corner as shown on original submitted document Dwg A - 02 Rev A and B".

The evidence given by the Saad brothers that tree No 4 was only a "shrub" or a "bush" does not affect or diminish my conclusion that the two trees were in existence in the south-east corner of the development site and were known by the Defendant to be in existence prior to their being cut down and/or removed during the carrying out of the approved development.

The question remains whether the failure of the Prosecution to introduce into evidence the "attached site plan" referred to in Condition 40 means that charge has not been proved against the Defendant.

In this respect, it is to be recalled that the essence of the charge is the carrying out of development otherwise than "in accordance with the consent" (which obviously includes the conditions subject to which the consent has been granted).

In the present case where Condition 40 is alleged to have been contravened, it must accordingly be established that the two "existing Melaleuca decora trees located on the south-east boundary and numbered 3 and 4 on the attached site plan" have not been retained in the carrying out of the approved development. The question is simply this - Can that fact be established without that plan being in evidence?

But for the fact that at the trial there was evidence that establishes (i) the existence on the development site (before the Defendant commenced to implement the development consent) in the south-east corner of a cluster of three trees with another tree a little removed from that cluster; and (ii) the non-existence of all of those same trees (but for the surviving tree stump) after the Defendant had commenced to implement the development consent, the failure of the Prosecution to introduce into evidence the "attached site plan" referred to in condition 40 may have presented an insuperable deficiency in the Prosecution evidence. However, in the light of the two facts that I have just referred to, it is possible to make the finding beyond reasonable doubt that condition 40 has been contravened because none of the four trees located in, or near the south-eastern corner, has been retained in the carrying out by the Defendant of the approved development.

In so concluding I have interpreted condition 40 to essentially require the retention of the two nominated and identified existing trees, with the references to the botanical names of the trees and to the numbering of the trees merely serving the purpose of more precisely identifying those trees (and in particular in distinguishing them from the other two trees (permitted by condition 37 to be removed) which formed part of the cluster of trees located in, or near, the south-eastern corner of the development site).

Accordingly, I would reject the Defence submission that the Prosecution case must fail on account of the failure to introduce into evidence the "attached site plan" referred to in condition 40. (Additionally, in this respect it is to be noted that the Land and Environment Court Act 1979, s 43 cures any variance between the Order under s 41 charging the offence and the evidence adduced at the trial.)

For all the foregoing reasons, I am satisfied beyond reasonable doubt that the Defendant is guilty of the offence as charged.

Accordingly, I make the following orders:
The Defendant be found guilty of the offence charged.
The question of sentence be stood over to a date to be fixed with liberty to restore on three days' notice.

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(xv.) on 19 April 2000, Ms Morgan had the telephone conversation with the Defendant that I have earlier recited.

37. On the basis of the abovementioned facts, I am satisfied beyond reasonable doubt that the Defendant is criminally responsible for the offence charged inasmuch as it is established beyond reasonable doubt that (i) he was the person who obtained development consent; (ii) he was a co-director with his brother of the building company undertaking the development; (iii) he was relevantly engaged in carrying out the approved development; (iv) when, in the course of that development activity, the two trees located in the south-eastern corner of the development site were cut down and/or removed in contravention of condition 40. My ultimate conclusion of the Defendant's criminal responsibility for the offence charged is directly supported by the holdings of the Court of Criminal Appeal in Rao to the effect that (i) the offence charged imposes strict liability; and (ii) criminal liability is attracted by the person who implements the development consent (eg by carrying out the approved development or commencing to carry it out) otherwise than in accordance with the relevant conditions of consent.

38. Accordingly, on the authority of the decision in Rao, it is not necessary in my opinion, for the Prosecution in the present case to establish that the Defendant either (i) personally contravened condition 40 by failing to retain the nominated trees or (ii) gave instructions to an employee or contractor to cut down and/or remove the trees, thereby creating the result that condition 40 was contravened (because the nominated trees were not retained).

39. However, if the decision in Rao be put aside for the moment merely for the purposes of argument, and if it be accordingly assumed that the Prosecution must prove against the Defendant, direct or accessorial involvement in the contravening conduct or alternatively must prove that he was vicariously responsible for the actions of his employees or contractors, the evidence that I have summarised above, together with the evidence of the Defendant and of his brother (which I shall presently briefly mention) satisfies me beyond reasonable doubt that the Defendant is criminally responsible for the contravening conduct.

40. I need only refer to those parts of the evidence of the Defendant which is corroborated by the testimony of his brother) that it was the Defendant (i) who hired the demolition contractor; (ii) who was responsible for on-site activities (including the clearing of the land) on the development site; and (iii) who gave the demolition contractor instructions.

41. When this evidence is combined with the admissions that were made by the Defendant in his conversation on 19 April 2000 with Ms Morgan that he was on site with the demolition contractor, giving him instructions on the basis of the content of the approved plans (Exhibit 2), which plans contained notations for the removal of all four existing trees located in, or a little removed from, the south-eastern corner of the development site, it is clear beyond reasonable doubt, in my judgment, that it was the Defendant who was directing, and who was therefore responsible for, the works that were being carried out on the development site, in implementation of the development consent.

42. I have earlier stated why I ultimately found the Defendant's evidence on the question of when the contravening conduct was committed, to be confusing, unconvincing and unreliable. I have reached the same conclusion in respect of the Defendant's testimony on the question of the identity of the person(s) who cut down and/or removed the two trees located in the south-eastern corner of the development site which had been nominated by condition 40 for retention. In this respect too, I find Ms Morgan's evidence of the admissions made by the Defendant to be credible and reliable and acceptable. Of course, in a fundamental sense, the identity of the person who cut down and/or removed the relevant trees is irrelevant to proof of the offence charged against the Defendant. As I have earlier held, that charge is established by proof that the person charged implemented the development consent by carrying out the development otherwise than in accordance with the conditions of consent: Rao.

D. THE EFFECT OF THE PROSECUTION EVIDENCE NOT INCLUDING THE PLAN THAT IS REFERRED TO IN CONDITION 40

43. The Defence submission (admittedly "technical") is to the effect that the prosecution must fail because the Prosecution did not (presumably on account of some inadvertence) introduce into evidence "the attached site plan" referred to in condition 40.

44. The fact of the grant of development consent and the terms of that consent were proved by Mr Lindsell's affidavit (par 3) annexing a true copy of the Notice of Determination given by the Council pursuant to the EP&A Act. However, the annexed copy did not include the "attached site plan" (referred to in Condition 40) and that plan was never introduced into evidence.

45. There were, however, other plans introduced into evidence showing the trees on the development site, namely (i) the approved amended development application plans (Exhibit 2) and the survey plan (Exhibit 3) that accompanied the development application. Both these plans indicate by appropriate notation and depiction, the presence of existing trees on the development site introducing a cluster of three trees located in the south-eastern corner of the site.

46. However, unlike the assumed content of the "attached site plan" (referred to in Condition 40), the botanical names of the depicted trees are not noted on the plans (Exhibits 2 and 3) and the trees are not numbered.

47. Moreover, Ms Morgan's affidavit (par 2) annexes a true copy of a "site and set out plan prepared by Impact Architects" which plan does contain notations of the botanical names of the existing trees located on the subject site and numbers the cluster of three trees at the south-eastern corner of the development site and another tree a little removed from the cluster. The notation is as follows: "4x Melaleuca Decora" and the trees are numbered 1, 2, 3 and 4, trees numbered 3 and 4 being adjacent to the southern boundary of the development site in the south-eastern corner, and trees numbered 1 and 2 being a little removed towards the centre of the development site. Apart for the existence of these notations, the content of that plan is very similar to the "site and setout plan" included in the approved amended development application plans (Exhibit 2). For example, both plans are titled "site and setout plan" and both plans bear the same drawing number "A - 02" except that the plan in the approved amended development application plans is marked Revision "B".

48. In her affidavit (par 2) Ms Morgan states that at the first meeting she had with the Saad brothers on 7 January 2000 at which they had discussed the two trees in the south-eastern corner of the development site, the trees discussed were the trees marked with the numbers 3 and 4 on the plan that she annexed to her affidavit.

49. I am left in no doubt on the evidence that the Defendant knew which two of the cluster of three (or four) Melaleuca decora trees were required by condition 40 to be retained (and which two trees were permitted by condition 37 to be removed). He himself described them in his modification application as "two existing trees on south-east corner as shown on original submitted document Dwg A - 02 Rev A and B".

50. The evidence given by the Saad brothers that tree No 4 was only a "shrub" or a "bush" does not affect or diminish my conclusion that the two trees were in existence in the south-east corner of the development site and were known by the Defendant to be in existence prior to their being cut down and/or removed during the carrying out of the approved development.

51. The question remains whether the failure of the Prosecution to introduce into evidence the "attached site plan" referred to in Condition 40 means that charge has not been proved against the Defendant.

52. In this respect, it is to be recalled that the essence of the charge is the carrying out of development otherwise than "in accordance with the consent" (which obviously includes the conditions subject to which the consent has been granted).

53. In the present case where Condition 40 is alleged to have been contravened, it must accordingly be established that the two "existing Melaleuca decora trees located on the south-east boundary and numbered 3 and 4 on the attached site plan" have not been retained in the carrying out of the approved development. The question is simply this--Can that fact be established without that plan being in evidence?

54. But for the fact that at the trial there was evidence that establishes (i) the existence on the development site (before the Defendant commenced to implement the development consent) in the south-east corner of a cluster of three trees with another tree a little removed from that cluster; and (ii) the non-existence of all of those same trees (but for the surviving tree stump) after the Defendant had commenced to implement the development consent, the failure of the Prosecution to introduce into evidence the "attached site plan" referred to in condition 40 may have presented an insuperable deficiency in the Prosecution evidence. However, in the light of the two facts that I have just referred to, it is possible to make the finding beyond reasonable doubt that condition 40 has been contravened because none of the four trees located in, or near the south-eastern corner, has been retained in the carrying out by the Defendant of the approved development.

55. In so concluding I have interpreted condition 40 to essentially require the retention of the two nominated and identified existing trees, with the references to the botanical names of the trees and to the numbering of the trees merely serving the purpose of more precisely identifying those trees (and in particular in distinguishing them from the other two trees (permitted by condition 37 to be removed) which formed part of the cluster of trees located in, or near, the south-eastern corner of the development site).

56. Accordingly, I would reject the Defence submission that the Prosecution case must fail on account of the failure to introduce into evidence the "attached site plan" referred to in condition 40. (Additionally, in this respect it is to be noted that the Land and Environment Court Act 1979, s 43 cures any variance between the Order under s 41 charging the offence and the evidence adduced at the trial.)

57. For all the foregoing reasons, I am satisfied beyond reasonable doubt that the Defendant is guilty of the offence as charged.

1. The Defendant be found guilty of the offence charged.

2. The question of sentence be stood over to a date to be fixed with liberty to restore on three days' notice.

Planning and Assessment Act 1979

Environment Court Act 1979

At a glance

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Judgment (143 paragraphs)

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