Council of Camden v Runko

Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485; Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; Camilleri's Stockfeed Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Council of Camden v Tax (2004) 137 LGERA 368; CASES CITED: Council of the City of Gosford v Tauszik [2005] NSWLEC 266; Environment Protection Authority v Hochtief AG [2006] NSWLEC 200; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; Power v Penthill House Pty Ltd (1993) 80 LGERA 247; R v Thomson (2000) 49 NSWLR 383 (CA) ; Thorneloe v Filipowski (2004) 52 NSWLR 60

PROSECUTOR: Mr A J J Thompson, barrister SOLICITORS Ritchie and Castellan LEGAL REPRESENTATIVES:

DEFENDANT: Mr T G Feerick, solicitor SOLICITORS Frontier Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT HIS HONOUR: INTRODUCTION 1 The defendant has pleaded guilty to an offence against s 125(1) of the Environmental Planning and assessment Act 1979 (EP&A Act) that in or about April 2005 on land being lot 28 in Deposited Plan 2285382 at 39 Gregory Road, Leppington, NSW, he did cause to be carried out a development, namely removal of living trees, without development consent pursuant to cl 28(1) of Camden Local Environmental Plan No 48 (LEP). 2 Section 76A(1)(a) of the EP&A Act provides that where an environmental planning instrument (such as the LEP) provides that a specified development may not be carried out except with development consent, a person must not carry out the development unless the consent is obtained and in force. It is a strict liability offence under s 125(1) to do something which is, by or under that Act, forbidden to be done. 3 The maximum penalties provided for under s 126(1) for an offence are $1,100,000 and a daily penalty not exceeding $110,000. Section 126(3) provides that the Court has power to make a restitution order in addition to or in substitution for a pecuniary penalty, as follows: Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed or liable to be imposed, direct that person:

(a) to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, and (b) to provide security for the performance of any obligation imposed under paragraph (a).

4 The parties seek consent orders that the defendant carry out remediation work and pay the prosecutor's costs in the sum of $8,000 within two years. In addition, the defendant applies for an order directing that the charge be dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.

THE EVIDENCE 5 There is no factual dispute except as to the number of trees removed. 6 The offence occurred on a rural property known as 39 Gregory Leppington. It has an area of approximately 2 hectares, is low lying and bisected by a water course. The property is unoccupied but has a dilapidated house located in the south eastern corner. The property is zoned 1(b) (Rural) "B" (2ha) under the LEP. 7 Clause 28(1) of the LEP states: - A person shall not ringbark, cut down, top, lop, remove, injure or wilfully destroy any living tree, or cause such a tree to be ringbarked, cut down, removed or wilfully destroyed, without development consent

8 Clause 5 of the LEP states:­ 'tree' means any tree sapling or shrub which -

(a) is 3 metres or more in height. (b) has a girth of 300mm or more at a height of 1 metre above natural ground surface; or

9 In or about April 2005 the defendant removed 30 living trees which were 3 metres or more in height with a girth of 300mm or more at a height of 1 metre above natural ground level, without development consent. The defendant submitted that only about 8 living trees were removed. I am satisfied that his estimate is based on an erroneous, although genuine, perception that a "tree" is relevantly of larger minimum dimensions than those prescribed under the LEP. 10 The defendant is a married man with one child aged four (4) years and his wife is pregnant with a second child. He earns approximately $300 per week and his wife currently earns approximately $312 per week. 11 In or about November 2004, the defendant and his wife exchanged contracts to unconditionally purchase the said property. The purchase price was $615,000 of which they borrowed $610,000. The property now has a market value of approximately $550,000. The defendant and his wife have mortgage payments of approximately $4,000 per month and do not receive any rents to offset the mortgage. 12 In November 2001, the defendant's grandfather passed away after a prolonged palliative illness caused by asbestos. The defendant was traumatised by his grandfathers' constant pain and suffering over a fifteen year period. 13 In November 2004, shortly after contracts were exchanged, the defendant discovered that the property was severely contaminated in the location of a swamp which contained raw human sewage, asbestos, motor vehicle parts and building waste that posed a risk of harm to the environment and adjoining neighbours. 14 In November 2004, the defendant drew to the attention of the prosecutor and the Environment Protection Agency the seriousness of the contamination of the swamp. Both the prosecutor and the Environment Protection Authority informed the defendant that the cleaning-up of the contaminants was his responsibility. 15 In April 2005, the defendant engaged a contractor (his brother Adrian) to clean-up the swamp by way of mechanical excavation. The excavation of the swamp involved the removal of several tonnes of contaminants such as asbestos, raw human sewage, building waste and motor vehicle parts. The cost to remove and safely dispose of the asbestos was approximately $10,000. 16 During the course of the excavation, the defendant observed that the subject trees were unstable, damaged and dangerous to persons and property and that their roots were intertwined with the contaminants. Shortly after he removed the trees, the prosecutor council issued him with a clean-up order which required him to remove the contaminants. 17 The defendant is contrite and remorseful. He has co-operated with the prosecutor at all times. He now realises that he ought to have asked the prosecutor to give more explicit directions about the cleaning-up of the swamp and dealing with the trees in the proximity of the swamp. He now realises that he should have obtained development consent from the prosecutor before he caused the removal of the trees. 18 The defendant has offered from the outset to remediate the property by re-planting trees to meet the prosecutor's requirements. He has also offered to pay the prosecutor's legal costs which were approximately $6,500 in June 2006. 19 The defendant has no convictions. He has not previously come to the attention of police or any other public law enforcement authority. 20 Three character references were tendered in the defendant's case. The first was from his grandmother, Immacolata Calla. She recounts that in 2001 the defendant's grandfather died from asbestosis after a painful, long and tragic illness, and that subsequently the defendant reacted emotionally to finding asbestos on his property. 21 The second character reference is from Stella Sgamobellore who has been acquainted with the defendant for 17 years. She knows him to be a hard worker, a consistent provider, and a person with a strong moral and ethical character for whom the welfare of his family is his highest priority. She shared in his family's excitement when the property was purchased and a milestone reached in his dream to raise his family on a rural property. She shared their despair when the environmental issues of the property came to light. 22 The third character reference is from K M Thirul, P Thirul and S Thirul who have known the defendant and his family for a number of years. They know him as hard working, well respected in the community and honest. They express concern about the asbestos effects of the property on everyone who lived in the street.

PENALTY 23 In Power v Penthill House Pty Ltd (1993) 80 LGERA 247, Stein J said at page 252:­ The purpose of the Environmental Planning and Assessment Act is, broadly speaking, to promote the proper management of resources or land for the economic, social and environmental welfare of the community.

24 A number of recent decisions in the Land and Environment Court reflect the recognition by the Courts of the need to preserve an orderly and proper assessment before trees are cut down or otherwise dealt with. In Council of Camden v Tax (2004) 137 LGERA 368, which was concerned with a matter under the same provisions of the Camden LEP, McClelllan CJ said at 372: The necessity for the protection of vegetation in the community is now accepted in virtually every area of the state. Special legislation has been provided in relation to rare species and ecological communities but beyond that legislation, as the Local Environmental Plan in this case illustrates, steps have been taken to ensure that in areas where development may be appropriate, decisions with respect to the grant of development consent are taken after regard is had to the value and significance of the vegetation on any parcel of land. As this Local Environmental Plan makes plain, that protection has been extended even to land which is otherwise identified as suitable for rural or rural-related uses.

Accordingly, in imposing a penalty in this particular case, it is most important to ensure that the penalty sends a message to the general community that before any activity is taken which may cause the demise of any tree, development consent must be obtained from the local council. Unless that message is sent and received by the community, there will be difficulties in ensuring that the objective of carefully considering the necessity to retain vegetation in many areas, particularly rural areas, is achieved.

25 Subsequently in Council of the City of Gosford v Tauszik [2005] NSWLEC 266, McClellan CJ stated­ [3] Control of the removal of trees is commonly provided in planning instruments, particularly in urban areas. In this respect, the Gosford Planning Scheme Ordinance is typical. Different arrangements are often provided in relation to the control of trees and other vegetation in rural areas where particular legislation has been provided in relation to vegetation of various types.

[4] Common to provisions in planning instruments in urban areas is a requirement that before a tree can be removed, and in many cases before it can be significantly altered, the consent of the Council is required. Planning instruments which contain these provisions are developed in recognition of the community's concern to ensure the trees which contribute to the quality of urban landscape are not indiscriminately removed but that only occurs after a judgment has been made as to the impact of the removal of the tree. Accordingly, any breach of a provision in a planning instrument designed to control the removal of trees is objectively serious for it challenges the means by which the community has provided for the preservation of the quality of the urban landscape.

[20] In the present case, I believe that it is important to mark the seriousness of the offender's conduct by a penalty which is sufficient to ensure that not only is he adequately punished but others in the community are reminded of the serious nature of the offence. In this respect the community has, as I have indicated, entrusted of the management of the urban landscape in this area to the Council. That landscape is provided not only by the buildings and other structures which were erected within it but is significantly defined by the nature of the vegetation, both native and otherwise, which has been either maintained or planted over the years. Just as the community expects that everyone within it will honour the obligation to obtain consent for the erection of structures, so the community expects that anyone who wishes to alter the natural landscape by removing or modifying trees will approach the local council to obtain consent. In this way the community's aspirations for the urban environment can be identified, evaluated and implemented.

[21] The offender by his unilateral act chose to step outside the regime which the community has provided and, accordingly, a significant penalty should be imposed. When imposing that penalty I am mindful of the fact that orders will be made requiring the replanting of trees. I am also mindful of the fact that the offender will suffer an order for costs which, having regard to the complexity and length of these proceedings, will impose a further significant financial obligation. "

26 In Camilleri's Stockfeed Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698, Kirby P, with whom Campbell and James JJ agreed, said:­ While it is the function of the Court itself to assess the seriousness of the offence in question, the maximum penalty available for an offence reflects the 'public expression' by Parliament about the seriousness of the offence: R v H (1980) 3 A Crim R 53 at 65. Here the maximum penalty is $125, 000. Such a large penalty indicates the gravity of offence as perceived by the community ... The task of the court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which appropriately correlates upon the scale of penalties set by the legislature from zero to the maximum.

27 A review of the cases involving the cutting or removal of trees was undertaken by Preston CJ in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 at [105] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242 at [183] - [187]. 28 The sentence should reflect the objective seriousness of the offence and the subjective circumstances of the defendant: Cameron (above) at [51]; Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 (Preston CJ) which also concerned removal of a tree without development consent. 29 The Crimes (Sentencing Procedure) Act 1999, s 21A requires the court to take into account aggravating, mitigating and other factors in sentencing. Sections 22A and 23 empower the court to impose a lesser penalty than otherwise for pre-trial disclosures and for assistance provided to law enforcement authorities. Section 22 provides that a court must take a guilty plea and its timing into account and may accordingly impose a lesser penalty than otherwise. The utilitarian value of a guilty plea to the criminal justice system should generally be assessed in the range of 10 to 25 percent discount on sentence: R v Thomson (2000) 49 NSWLR 383 (CA) at 419 [160]; Environment Protection Authority v Hochtief AG [2006] NSWLEC 200 at [81] - [83] (Biscoe J).

THE MAXIMUM PENALTY 30 The first objective circumstance relevant to determining the seriousness of the offence is the maximum penalty, to which I have referred earlier. This reflects the legislative expression of the seriousness of the offence.

ENVIRONMENTAL HARM 31 A second objective circumstance relevant to determining the seriousness of the offence is the objective harmfulness of the defendant's action which depends, in part, on the seriousness of the environmental harm. 32 Thirty trees were removed from a rural property. The unchallenged evidence, which I accept, is that the trees were unstable, damaged and dangerous to persons and property; and that their roots were intertwined with the contaminants, including asbestos, that were required to be removed under the council's subsequent clean-up order. It is difficult to see, on the evidence before me, how the defendant could have cleaned up the contaminants without removing the trees since their roots were intertwined with the contaminants. It is also difficult to see, on the evidence before me, how a development consent for removal of the trees could reasonably have been refused if it had been applied for. In these extraordinary circumstances, I am not satisfied that there was any environmental harm. The remediation order to which the defendant has consented will improve the land environmentally compared with its state before removal of the trees.

DEFENDANT'S STATE OF MIND 33 A third objective circumstance relevant to determining the seriousness of the offence is the defendant's state of mind at the time of the offence. 34 Although the removal of the trees was intentional, the defendant had been told by the prosecutor and the Environment Protection Authority, whose attention he had drawn to the seriousness of the contamination of the swamp, that cleaning up the contaminants was his responsibility. He thought that removal of the trees, whose roots were intertwined with the contaminants was part of that responsibility. He thought, justifiably, that the trees were unstable, damaged and dangerous to persons and property.

REASONS FOR COMMITTING THE OFFENCE 35 A fourth objective circumstance relevant to the seriousness of the offence is the reason for its occurrence. 36 The defendant removed the trees because they were unstable, damaged and dangerous to persons or property and their roots were intertwined with the contaminants.

NEED FOR GENERAL DETERRENCE 37 In Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 Preston CJ said at [93] - [94]: There is a need for general deterrence for environmental offences and, in particular, for offences involving the removal of trees without or contrary to development consent: see the cases set out in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 (13 February 2006) at [59], [71]-[80] and Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242 (10 May 2006) at [103].

There is a need for upholding the integrity of the system of planning and development control. This system depends on persons, first, taking steps to obey the law by ascertaining when development consent is required, secondly, obtaining any development consent so required before carrying out development and, thirdly, complying with the terms and conditions of the development consent: Byron Shire Council v Fletcher (2005) 143 LGERA 155 at 164 [60] -165 [61] and Gittany Constructions Pty Limited v Sutherland Shire Council [2006] NSWLEC 242 (10 May 2006) at [104]-[105].

38 In my opinion, in the exceptional circumstances of the present case, little, if any, general deterrence purpose is served by imposing a pecuniary penalty on the defendant.

SUBJECTIVE CONSIDERATIONS 39 The following are relevant subjective considerations:

(a) The defendant has no prior convictions nor has he ever come to the attention of the police or any other public law enforcement authority. (b) The defendant is of good character. (c) The plea of guilty was at the earliest opportunity. (d) The defendant is unlikely to re-offend. (e) The defendant is contrite and remorseful and has cooperated with the prosecutor at all times. He now realises that he ought to have asked the prosecutor to give more explicit directions about the cleaning up of the swamp and dealing with trees in the proximity of the swamp; and that he should have obtained development consent before he caused the trees to be removed. (f) The defendant has offered from the outset to remediate the property by replanting trees to meet the prosecutor's requirements and had offered to pay the prosecutor's legal costs. (g) The defendant has cooperated with the regulatory authorities.

SECTION 10 CRIMES (SENTENCING PROCEDURE) ACT 1999 40 The defendant also applies for an order directing that the charge be dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 which relevantly provides: Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. …

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider.

41 In Thorneloe v Filipowski (2004) 52 NSWLR 60 at 72 [151] - [153] Spigelman CJ said: The discretion conferred by s 10 is wide-ranging. There is no warrant for treating the scope and range of matters which it is 'proper' for a sentencing judge to take into account in a narrow way. Nevertheless, it is a discretion which must be exercised judicially. The identification of relevant considerations turns on the scope and purpose of s 10.

As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269 in the context of concluding that the then equivalent of s 10 in South Australia applies to the offence there under consideration: ... The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception. Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow upon conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia's sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.

The last sentence of this passage was quoted with approval by Gleeson CJ when he said in R v Ingrassia (1997) 41 NSWLR 447 at 449: The essence of s 556A is that it empowers a court which considers that a charge has been proved, in certain circumstances, to take certain steps 'without proceeding to conviction'. The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court.

42 Spigelman CJ also said at 76 [178]: It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight.

43 Hulme J said at 78 [198] In empowering a court to either dismiss a charge or discharge on a good behaviour bond an offender who is guilty, s 10 permits the adoption of a more lenient approach than merited by the strict application of the relevant law against which a defendant has offended. However it is clear that it is not only mitigating circumstances to which regard may be had. Thus while the matters referred to in s 10(3)(b) and s 10(3)(c) are of that nature, those in s 10(3)(a) are not necessarily so.

44 In deciding whether to make an order under s 10(1) directing that the charge be dismissed, I have had regard to the following factors:

(a) the defendant's good character and antecedents; (b) the extenuating circumstances in which the offence was committed. The defendant purchased land which was found to be contaminated. He was told by the prosecutor and the Environment Protection Authority that clearing up the contamination was his responsibility. In clearing up the contaminants he found that the trees were a danger to persons or property and their roots were intertwined with the contaminants. A clean-up order by the council soon afterwards required him to remove the contaminants. On the evidence before me, it is difficult to see how he could have done so without removing the trees, or how a development consent to remove the trees could have been rationally refused if it had been applied for; (c) it is proper to consider the defendant's despair and emotional state on finding that his dream of his family living on a rural property was threatened by the presence of contaminants. The contaminants included asbestos which had killed the defendant's grandfather after a prolonged, painful illness which left the defendant traumatised and caused him to react emotionally upon finding asbestos on the property. It is also proper to consider that he is contrite and remorseful, and has offered from the outset to remediate the property by planting trees to meet the prosecutor's requirements.

45 The defendant is guilty of a strict liability offence. However, in the extraordinary circumstances of this case, I have decided, without proceeding to conviction, to make an order that the charge be dismissed.

ORDERS 46 I make the following orders: (1) Order directing that the charge against the defendant be dismissed. (2) By consent, order that the defendant: (i) within 12 weeks of the date of this order, cause a 400 square metre portion of Lot 28 Deposited Plan 221083, known as No. 39 Gregory Road, Leppington to be fenced off by the construction of a 1.2 metre high stock-proof fence consisting of steel pickets and 5 strands of wire including maintenance access gates in the rehabilitation zone generally located as shown in the rehabilitation map annexed hereto; (ii) arrange a weed control program to eradicate weeds other than pasture grass plant species. This work is to be undertaken by a person or persons who are competent in the identification of weed species; (iii) remove any rubbish and debris that may be within the rehabilitation zone by hand; (iv) ensure all trees both living or dead, fallen logs or any native understory vegetation including leaf litter not be removed from the rehabilitation zone by hand; (v) ensure no parking of vehicles or equipment, storage of materials or depositing of any type of waste, compost or soil, or any other activity that causes harm to the regeneration of native plant growth be permitted within any part of rehabilitation zone; (vi) keep and maintain the fencing referred to in paragraph (i) in stock-proof condition, including keeping the wire strained and otherwise maintained in a good condition at all times, until the 30 seedlings planted reach a height of 3 metres; (vii) within 14 weeks of the date of this order, cause 30 seedlings of Cumberland Plain woodland tree species to be planted within the rehabilitation zone; (viii) maintain the 30 seedlings until they reach a height of 3 metres and if any die prior to reaching a 3 metre height, cause a replacement seedling to be planted and maintained until the replacement reaches a height of 3 metres; (ix) ensure subsequent weed control within the rehabilitation zone is conducted at 12 monthly intervals after the initial control program. A specialist contractor qualified in bush regeneration is to be engaged to perform this follow up weed control; (x) lodge a performance bond with the prosecutor council in the sum of $8,000 and the council shall retain the bond until such time as all the trees reach a height of 3 metres; (xi) permit officers of the council of Camden to have access to the said land for the purposes of inspecting the work ordered to be carried out, first at the time of completion of all fencing and tree planting work and then to carry out follow up inspections each 12 months after the date of this order; (3) By consent, order that the defendant pay the prosecutor's costs agreed in the sum of $8,000 on or before 9 August 2008.

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