Council of Camden v Tax

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: The defendant pleads guilty to a charge that on or about 8 November 2002 he carried out development, namely, the removal of trees on land being Lot 1034 DP 851113, known as 164B Coates Park, Cobbitty ("the land"), without development consent in contravention of s 76A of the Environmental Planning and Assessment Act 1979 (NSW), thereby committing an offence under s 125(1) of that Act. 2 The parties have agreed the facts relevant to consideration of the penalty which the Court should impose. Drawing upon those facts, I am satisfied that at 8 November 2002 the defendant was the owner of the relevant land. He owned the land as joint tenant with his wife, Barbara Joan Tax. The defendant and his wife lived on the land, having constructed a house there in 1999. Prior to 29 October 2002, the land had been owned by the defendant's son, Shane Michael Tax. 3 At the relevant date, the land was zoned 1(a) Rural 'A' (40 Ha Zone) under the Camden Local Environmental Plan No 48. Clause 28 of the Local Environmental Plan provides: "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." 4 "Tree" is defined in clause 5 under the LEP as follows: "'Tree' means any tree, sapling or shrub which - (a) is 3 metres or more in height (b) of 1 metre has a girth of 300mm or more at a height of 1 metre above natural ground surface; or

(c) has a branch span of 3 metres or more." 5 The land was created as a separate allotment pursuant to a subdivision approved by the Council on 12 September 1994. An important condition of the consent to subdivision was condition 15, which provides as follows: "All existing trees and natural landscape features shall be retained except where the prior written consent to removal has been obtained from the council." 6 Condition 16 of the consent required a s 88B instrument to be prepared for the land, including a restriction as to user in relation to the removal of trees. That restriction was created and is noted on the title. 7 There have been tendered in evidence maps said to have been prepared by the National Parks and Wildlife Service which indicate that the land contains areas of ecologically significant and environmentally sensitive land as well as some components of the endangered ecological community known as the Cumberland Plain Woodland. 8 The land has a total area of 127 acres, or approximately 52 hectares. However, the prosecution does not submit that the trees which were cut and which are relevant to this offence, being a total of 40 or thereabouts, were necessarily comprised within the relevant community or on the environmentally sensitive part of the property. However, the prosecution submits that the maps make plain that the trees on this site were all of potential significance, making more important the obligation to obtain development consent before any of them were cut or removed. On or about 1 July 1999 a Development Application was made to remove trees from the land. The applicant for that consent was nominated as "A., B. and S. Tax", being the defendant, his wife Barbara, and his son Shane. 9 In a telephone conversation on 11 November 2002, the defendant stated: "I am very sorry about the trouble. I have caused I did not know that I needed permission to clear saplings. I am very concerned about bushfires and I wanted to clear around the house." 10 During a site inspection on 11 November 2002, the defendant stated: "This is a waste of time. They are only saplings. Haven't you [council officers] got something better to do? I don't need this. I don't need people telling me what I can and can't do on my property." 11 The defendant has not given evidence in these proceedings. The decision to not give evidence was a conscious one communicated to the Court by his counsel. Photographs have been tendered of the trees which were cut and I am satisfied beyond any doubt that they comprised far more than saplings. 12 It has been agreed between the parties that the trees removed were mainly Eucalyptus or Melaleuca species, and that the vast majority, at least 90 per cent, were in excess of ten years old. At least 15 Eucalyptus tereticornis (Forest Red Gum) trees were cut down. These trees were between 20 and 25 metres in height. The trunk diameters ranged between 150 and 300 millimetres. The evidence from the photographs makes plain that the majority of the trees were significant. 13 On 28 November 2002, the defendant stated in an answer to the question "Did you know you needed consent?", "No, not for the rubbish. I thought that I did not need consent to clear saplings." The integrity of this answer can be tested against the objective evidence from the photographs. I am satisfied beyond any doubt that the trees were not rubbish, nor were they saplings. I am accordingly satisfied, having regard to the Development Application which was lodged with the council and the answer which the defendant gave to this question, that he was aware that development consent was required if trees other than saplings were to be removed. I am also satisfied the defendant knew that what had been taken were trees far more significant than saplings or rubbish trees. 14 The process of tree removal was to knock them over at ground level using the blade of a bulldozer. The bulldozer was operated by Mark Atkin. The defendant engaged Mr Atkin to clear the trees and dealt directly with him. The instructions given to the bulldozer operator by the defendant were: "I wanted the Operator to clear the rubbish trees and to push them up into piles, so that I could burn them later. I am not happy with the work that was overseen by Shane, because the trees are just knocked down and not piled up like I wanted. Now it is a real mess. The next day I was on site, and I gave instructions to the Operator. My instructions to the Operator were to get rid of the saplings. Push them up into piles but stay out of the creek otherwise they [the council] will string me up." 15 According to the defendant, the purpose of the work was: "To get rid of the rubbish trees, the ugly and unhealthy ones. Because Shane doesn't keep them down, the trees get too big. I will not let them get out of control again. I'd heard that between 20 to 40 trees to the acre is a good number of trees to keep on grazing pasture. I was worried about bushfires and I was particularly concerned for my wife's safety being isolated out here. Who is going to come out here and save us." 16 Counsel for the defendant pressed, but faintly, the submission that I should accept this answer with respect to the concern of the defendant in relation to bushfires. An aerial photograph of the property has been tendered and it is plain that the trees which were cut, being in the south-west corner of the property, were many hundreds of metres from the defendant's dwelling. Any concern about bushfires was unrealistic and I do not accept it. Furthermore, I do not accept that the removal of these trees could in any way have enhanced the safety of the house or of the defendant's wife. 17 The trees were removed and stockpiled on the land and, as I have indicated, photographs of the stockpiled trees have been tendered. It is conceded that no development consent was obtained for the cutting or removal of the relevant trees. 18 Facts in mitigation have been agreed and the defendant is not known to the prosecutor. Upon the agreement of the prosecutor to lead no evidence in relation to a summons in other proceedings, the defendant entered a plea of guilty. The defendant has at all times fully co-operated with the officers of the council in its investigation of the offence, including by voluntarily and freely answering questions when asked to do so and consenting, when asked, to the council officers inspecting the land and taking photographs. The guilty plea was entered at the earliest appropriate occasion; that is, after it had been clarified that all the prosecutor's evidence had been finalised. 19 The defendant has also offered to mitigate the environmental harm occasioned by his actions by offering to fence and protect from rabbits and stock 1 acre of the land and to plant 40 seedlings to replace the trees which have been lost. The proposal is that the trees will be maintained until they reach a height of 3 metres and stock and other animals will be excluded until that occurs. 20 The precise area to be fenced has not yet been agreed between the parties, but I anticipate that agreement will be reached. Accordingly, I propose today to provide for the penalty which will ultimately be imposed, mindful of the fact that orders by way of mitigation will also be imposed in addition to any penalty. I will invite the parties to bring in appropriate short minutes when I have concluded these reasons. 21 The defendant is a 61-year-old person and married. He lives on the property with his wife. He has three adult children but is still responsible for supporting one of them. The testimonials which have been tendered on his behalf speak to his good character and also his interest in the grazing of cattle, an activity which he conducts on the subject property and another property which he owns. 22 As I have indicated, it is accepted that he has pleaded guilty at the first opportunity and his counsel has, and I accept, indicated his contrition and remorse, which I also accept. This is confirmed by at least one of the testimonials. There is no prior record. 23 Notwithstanding these matters, counsel for the defendant accepts that the offence is a serious one and that the trees, in particular the number of trees, is not insignificant. In my opinion, the concession that the offence is serious was correctly made. 24 The Local Environmental Plan has been drafted with particular care to provide for the protection of trees in all areas of the council's responsibility. Although grazing and forestry are uses permissible without consent in the relevant zone, the council has nevertheless drafted the Local Environmental Plan, which has been made by the Minister, with the express object of protecting trees on the land so that they can only be damaged or removed with the consent of the council. 25 The necessity for such a control is reinforced by the evidence as to the environmental characteristics of the vegetation generally on the land. It is unnecessary to form any judgment as to whether or not the trees which were cut comprised part of the environmentally sensitive vegetation. It is sufficient to identify the fact that before any trees were cut on this property care was necessary and consent should have been obtained from the council. 26 In considering the appropriate penalty to be imposed in this case, I am satisfied that the defendant knew before authorising removal of the trees that development consent was required and he was conscious of the fact that in authorising the removal of the trees he was committing a breach of the law. 27 I am also satisfied beyond any doubt that in undertaking the activity, he was aware that he was conducting an activity which the council, through the Local Environmental Plan, had sought to ensure was only undertaken after very careful consideration as to whether it was appropriate. 28 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. 29 Accordingly, in imposing a penalty in this particular case, it is most important to ensure that that 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, but particularly rural areas, is achieved. 30 I have been referred to a number of decisions of this Court where penalties have been imposed for offences in relation to the unlawful destruction of trees. I have had regard to those cases, but of course each matter falls to be considered having regard to its particular circumstances. 31 The maximum penalty for the offence is the sum of $1.1 million and it is important to have regard to that maximum in considering the penalty which is appropriate in the present case. It is also important to have regard to the fact that the defendant entered his plea at the first available opportunity, has indicated his remorse and has co-operated with the council in the investigation of the offence. I am also mindful of the fact that he has no prior criminal record and I have regard to the testimonials which speak to his good character and integrity. 32 I must also have regard to the fact that an order will be imposed which requires the rehabilitation of a one acre portion of the property which will enable, with time, appropriate trees to re-grow. 33 In my opinion, the seriousness of the offence and the fact that I am satisfied beyond any doubt that the defendant knew that in authorising the activity he was breaching the law, would have required the imposition of a penalty of $45,000. However, having regard to the mitigating factors, including the early plea, contrition and co-operation, and the fact that rehabilitation works will be undertaken, I believe it is appropriate to reduce that penalty. But, in order to ensure that the necessary message of general deterrence is communicated to the community, that penalty should be reduced to the sum of $30,000. **********

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