Holroyd City Council v Skyton Developments Pty Ltd

JUDGMENT: 7 IN THE LAND AND MATTER No. 50071 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 14/03/02

Holroyd City Council Prosecutor v Skyton Developments Pty Ltd Defendant JUDGMENT

1. By Further Amended Summons the Holroyd City Council ("the prosecutor") charges Skyton Developments Pty Ltd ("the defendant") with an offence against s 125 of the Environmental Planning & Assessment Act 1979 ("the EP&A Act").
2. The charge alleges that on 29 January 2001 at Westmead the defendant breached the prosecutor's Tree Preservation Order ("the TPO") made under authority of cl 18 of the Holroyd Local Environmental Plan 1991 by removing a Queensland Firewheel Tree (Stenocarpus sinuatis) and a Crepe Myrtle (Lagerstroemia indica) ("the trees") contrary to cl 4 of the TPO.
3. Clause 4 of the TPO provides:- No person shall ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree without first obtaining the written consent of the Council of the City of Holroyd …
4. The defendant acknowledges that each tree was one which required consent for its removal pursuant to the provisions of cl 4 of the TPO and accordingly pleads guilty to the charge. The Facts
5. The trees were located on premises known as 23 Parkside Lane Westmead. Such land together with adjoining premises known as 24A Parkside Lane and 24 Parkside Lane (collectively referred to hereafter as "the site") were the subject of a development application No. 2000/552 made by the defendant to the prosecutor on 16 November 1999 for demolition of three existing houses upon each lot and the construction of a residential flat building.
6. In support of its development application a site meeting was held between representatives of the defendant, the prosecutor and the defendant's consultant arborist, Mr Danny Draper. At such meeting it was agreed that the trees be retained. Subsequently Mr Draper prepared a report which was submitted to the prosector on 16 November 1999. In his report ("the Draper Report") Mr Draper provided the following observations concerning the Crepe Myrtle tree:- Observations 7.1.1 Planted deciduous specimen of normal vigour. Located adjacent to existing brick garage at front of property and will be retained. Repeatedly top lopped to stimulate flower production, but not top lopped for up to 25 years. The tree has a short single trunk and multiple scaffold limbs with sprouts forming the upper crown from the site of the last lopping wounds in mid crown. The tree was in leaf and appeared to be free from the adverse effects of pests and diseases. Crown cover was approximately greater than or equal to 90% and the foliage density was approximately greater than or equal to 90%.

7.1.2 This is not a significant tree but will be prominent when road widening is complete and the new front property boundary will be close to its base. This will allow the retained tree to continue to grow as a contributing element of the local landscape adjacent to the road reserve. 7. The tree was of substantial proportions having a height of approximately 6 metres, a crown spread of approximately 5 metres and a trunk diameter at ground level of 170mm. 8. In relation to the Queensland Firewheel, Mr Draper made the following observations:- Observations 7.2.1 Planted evergreen specimen of normal vigour. The tree is a single leader specimen and supports a well structured crown with a narrow spreading to columnar habit. The tree appeared to be free from the adverse effects of pests and diseases. Crown cover was approximately greater than or equal to 90% and the foliage density was approximately greater than or equal to 90%.

7.2.2 This is not a significant tree currently, but is a prominent specimen due to its location close to the side boundary adjacent to the pedestrian lane between the street and the park. As an established specimen providing existing amenity, this tree will continue to develop providing colour, shade and screening to and from the site and is a bird food tree. The retention of this tree and its protection for incorporation into the landscape works for the site, allows it as a component of the current curtilage to be transferred to the new dwellings, maintaining elements of a continuous landscape, providing a more harmonious integration and transition of the use of the land. 9. This tree was assessed to have a height of approximately 12 metres, a crown spread of approximately 6 metres and an average trunk diameter at breast height of 195mm. 10. It is agreed by the parties that both trees were visually prominent and well positioned for retention. Pursuant to provisions of the Holroyd Development Control Plan No. 5 - Guidelines for Residential Flat Development, a minimum side set back control for residential buildings of 3 metres applied to the site. Both trees were located within the side set back area. Demolition application 11. Prior to the prosecutor's determination of development application No. 2000/552 the applicant lodged development applications No. 2001/156, 2001/464 and 2001/465 ("the applications") for demolition only of the existing structures on each of the three sites. The Draper Report did not accompany the applications. Instead a site landscape plan entitled "Site Landscape Works" Drawing 953-1 dated 7 July 2000 prepared by a landscape architectural firm known as "Precinct Landscapes" was submitted in support. Such plan showed the proposed removal of the trees. 12. Mr Northcott noticed that the Draper Report was not included in the applications. Accordingly he specifically raised this issue with the defendant and requested that it be submitted in support thereof. On 18 December 2000 the defendant supplied such report. 13. On 9 January 2001 the prosecutor granted development consent in respect of development applications No. 2001/156, 2001/464 and 2001/465. By two letters dated 11 January 2001 and one dated 15 January 2001 the council informed the defendant of such grants, subject to conditions. The conditions attached to the consent required the retention of all trees identified in Mr Draper's report for preservation. In respect of the property known as 23 Parkside Lane Westmead the prosecutor's letter dated 15 January 2001 advised the defendant that its development application 2001/156 had been approved and that the consent and was being held at its Customer Service Counter awaiting payment of bonds. One bond was required for tree preservation in the sum of $22,000.00. The letter states:- You are reminded that no works can commence on site until such time as all of the above monies have been paid and the plans released. The same notation appeared on the two letters dated 11 January 2001. Removal of Trees 14. Despite the notations, on 15 January 2001 the defendant instructed its project manager Mr Gus Martinez to proceed with demolition. No instructions were provided to Mr Martinez concerning the existence of the Draper Report, nor of the requirement to lodge the bonds prior to the release of the plans for the works. Mr Martinez was not informed of the conditions attaching to the consents. 15. Upon receiving his instructions Mr Martinez located the plan of Precinct Landscapes in the relevant file and enquired of Design Effect, the defendant's consultant, whether such plan was applicable. Mr Martinez was erroneously informed that such plan was to apply to the demolition works. No reference was made to the Draper Report nor to the need to comply with council's conditions prior to the commencement of any work. 16. Acting under the mistaken belief that the Precinct Landscape plan had been incorporated as part of the consent, Mr Martinez went on to the site and marked trees for removal including the trees which are the subject of these proceedings. They were duly removed by demolition contractor on or about 29 January 2001. The Submissions 17. The prosecutor submits that the removal of the trees was deliberate; that such removal was designed to achieve the ultimate object of the defendant namely to seek the removal of the trees to assist in its development proposal for the site. It relies upon the fact that the prosecutor specifically requested the defendant to provide the Draper Report in support of the applications. For this reason the prosecutor submits that a penalty sufficient to reflect an element of deterrence be incorporated into any penalty. 18. The defendant submits that the matters pertaining to the development consent are irrelevant to the charge which is confined solely to an alleged breach of the TPO and that it would be erroneous for the Court to consider the requirements of the development consent. Further it submits the fact that it ignored the requirements of the notification received on or about 15 January 2001 is also irrelevant. The defendant submits that having developed 15 sites in the western suburbs of Sydney over the past three years without conviction for any offence it should be entitled to the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999. Findings 19. The court is required to consider the charge upon the basis of strict liability: see Power v Penthill House Pty Limited & Ors (1993) 80 LGERA 247 at 253; see David Mulcahy on behalf of Canterbury City Council v Sudakar Rao, Pearlman J; NSWLEC Proceedings No. 50026 of 1997 and 50027 of 1997: Judgment 10/02/98; see also Rao v Canterbury City Council (2000) 112 LGERA 360 (CA). 20. The court accepts the submission of the defendant that the charge relates to a breach of the TPO and is irrelevant to any breach of the consents issued by the council in respect of the site. However in the assessment of penalty the facts surrounding the unlawful removal of the trees is a matter for consideration. Costs and penalty 21. The maximum penalty for an offence committed under s 125 of the EP&A Act by a corporation is $1.1 million. Section 126(1) of the EP&A Act provides:- 126(1) A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units. Penalties are provided by the TPO as follows:- a) if a prosecution is dealt with in a Local Court, a fine of up to $11,000.00; b) if a prosecution is dealt with in the Land and Environment Court, a fine of up to $110,000.00 and a daily penalty of up to $11,000.00. In Ku-Ring-Gai Municipal Council v Beaini [2001] NSWLEC 35 Bignold J considered a similar provision and determined that the amount nominated in the tree preservation order was the maximum penalty for which the defendant could be liable because it " was expressly imposed" pursuant to s 126(1) of the EP&A Act. The Court respectfully adopts the reasoning of Bignold J. 22. Although not specifically pleaded, the defendant's submissions appear to raise the defence of an honest and reasonable mistake which is available in respect of those offences to which strict liability applies: see He Kaw Teh v The Queen (1985) 157 CLR 523. However no evidence has been adduced from any director leaving the Court to speculate upon the true state of knowledge of the defendant. Accordingly such defence cannot be sustained. 23. A breach of a tree preservation order is a serious offence, as is breach of a condition to the same effect contained in a development consent: see Ryde City Council v Calleija (1998) 99 LGERA 360. The court determines that in these circumstances there is no basis for granting the defendant the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999. 24. The court considers that the appropriate penalty in this instance is the sum of $20,000.00. The defendant has pleaded guilty to the charge at an early date and is accordingly entitled to a reduction of penalty in accordance with the principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383. Although such decisions have been the subject of criticism by the High Court of Australia (see Cameron v The Queen [2002] HCA6) a plea of guilty has long been accepted as justifying a reduction in penalty (see Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 700 per Kirby P). In Siganto v The Queen (1998) 194 CLR 656, the majority of the High Court at p 663 said:- … a plea of guilty is ordinarily a matter to be taken into account in mitigation; first because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. 25. In the present circumstances a discount of 25% will be allowed in reduction of penalty. Orders 26. The court orders:

1. The defendant is convicted of the offence charged.
2. A penalty of $15,000.00 is imposed in respect of the conviction.
3. The defendant pay the prosecutor's costs.
4. Exhibits be returned.

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