Hornsby Shire Council v Devaney

Hornsby Shire Council v Devaney - [2007] NSWLEC 199 - NSWLEC 2007 case summary — Zoe

[16]

AGREED FACTS 5 The following facts are agreed:

Between about 10 and 12 October 2005, each of the defendants carried out development for the purposes of "land clearing", as that expression is defined in the Hornsby LEP.
The development was carried out on land within the Hornsby Shire comprising Lot 1 in DP 802425, known as 27-29 Peebles Road, Arcadia (the property).
The development principally comprised the use of a "CAT" excavator with an attached scraper to remove and otherwise clear trees, vegetation and bushland over an area of approximately 0.42 hectares on the property, for the purpose of constructing a horse arena which Ms Benson proposed to use. In the course of the development, vegetation, including trees, and soil were pushed from the cleared area into a number of stockpiles (7 stockpiles of vegetation and a number of stockpiles of soil) on the edge of the cleared area. The cleared area was, roughly, a rectangular area, which was left devoid of vegetation and topsoil by virtue of the carrying out of the subject works. Photographs of the cleared area and cleared vegetation and soil are in evidence.
Mr Devaney was at all relevant times working as an earth moving contractor, trading as "Glenorie Earthmoving". Mr Devaney was contracted by Ms Benson for commercial reward to carry out the land clearing works and, pursuant to that contract, Mr Devaney carried out the land clearing works as directed by Ms Benson.
Ms Benson retained Mr Devaney for the purpose of carrying out the land clearing works and directed him to carry out those works in the area in which those works were carried out.
At the time of the offence, between 10 and 12 October 2005, the property had just been purchased by Ms Benson's parents through their corporate vehicle. The property had been transferred to that corporate vehicle on 7 October 2005, being the date of settlement of the sale of the property to the corporate vehicle from the previous owners.
At all relevant times Ms Benson had care and control of the property on behalf of that corporate vehicle and had authority from it to engage persons to carry out work on the property.
At all relevant times the Hornsby LEP applied to the property. The property is and was at all relevant times zoned Rural AA (Large Holdings - Agricultural Landscapes) under the Hornsby LEP.
The Hornsby LEP relevantly defined the following terms: land clearing means the removal or destruction of bushland or vegetation including shrubs, groundwater and trees;

[17]

bushland means land on which there is vegetation which is either a remainder of the natural vegetation of the land or is still representative of the structure and floristics of the natural vegetation 10. The land clearing works were carried out in an area on the property which contained vegetation, trees and bushland. 11. The land clearing works involved the removal and destruction of bushland, vegetation, shrubs and trees. 12. The land clearing works involved the destruction and removal of approximately 55 trees in total, of which 49 trees had been alive prior to removal. 13. Pursuant to clause 7 of the Hornsby LEP and the zoning table with respect to the Rural AA zone, "land clearing", as defined in the Hornsby LEP, is development that may only be carried out with development consent. Thus the land clearing works the subject of the charge comprised development which, at the time of the commission of the offences, could only be carried out with development consent pursuant to clause 7 and the zoning table of the Hornsby LEP. 14. There was no development consent obtained or in force with respect to the property permitting the carrying out of the land clearing works. No other relevant consents or approvals, either pursuant to the council's Tree Preservation Order, or otherwise, had been obtained in relation to the removal of the trees and vegetation at the time of the commission of the offences. None of the 49 live trees that were removed were covered by the exemptions set out in paragraph 3(a) to (h) of the Tree Preservation Order. 15. There were no sediment and erosion controls in place during the clearing of the land at the relevant date. Sediment fences were put in place on the western side of the cleared area, running north/south, by the time of the second inspection by Council officers on 13 October 2005. 16. Each of the defendants has co-operated with the prosecutor at all material times. 17. Neither of the defendants has any prior convictions for environmental offences.

[83]

72 In Council of Camden v Tax (2004) 137 LGERA 368 the defendant pleaded guilty to a charge of removing a substantial number of trees without development consent in contravention of s 76A of the EPA Act thereby committing an offence under s 125(1). The court found that the defendant was aware that development consent was required if trees other than saplings were to be removed and that he knew that the trees were not saplings. His professed concern about bushfires was found to be unrealistic and was not accepted. The defendant was contrite and remorseful. An order was made against the defendant requiring the rehabilitation of a one acre portion of property which would enable appropriate trees to re-grow. In view of the seriousness of the offence and the fact that the defendant knew that in authorising the activity he was breaching the law, the imposition of a penalty of $45,000 would have been required. However, having regard to the mitigating factors, including the early plea, contrition and cooperation and the fact that rehabilitation works would be undertaken, it was appropriate to reduce the penalty. However, the necessary message of general deterrence should be communicated to the community. The penalty was reduced to $30,000. McClellan CJ said at [28] - [29]: 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.

[84]

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. 73 In Hornsby Shire Council v Moit [2001] NSWLEC 50 the defendant - like Mr Devaney - was in the business of earthmoving. In the course of that business he removed or destroyed approximately 49 trees without the council's consent. He was charged with two offences, breaching a tree preservation order and carrying out development without council consent. There was potential for environmental harm. A discount of twenty percent was allowed for a relatively early plea of guilty. The defendant agreed to carry out a remediation plan and was ordered to do so. Lloyd J said at [19]: "I am mindful of the fact that the defendant's business includes earthmoving so that he, more than anyone else perhaps, ought to have been aware that clearing the land of forty-nine trees was an activity which was unlawful in the absence of any consent. It also seems from the evidence that the defendant was aware of the need for an assessment of the impact of development before development is carried out". His Honour concluded that the case called for a combined penalty for the two offences of $50,000, which he reduced to $40,000 on account of the plea of guilty. This sum was apportioned as to $27,000 to the first offence and as to $13,000 to the second offence. In comparison, it may be said in Mr Devaney's favour that there is no suggestion that he was aware of the need for an assessment of the impact of the development before carrying it out, he had the mistaken perception that most of the trees were dead from bushfires; and he is entitled to a full twenty five percent discount for his plea of guilty at the earliest opportunity.

[88]

79 Ms Benson submitted that she should be granted a good behaviour bond for the following reasons: (a) she believed that she was doing the correct thing by having the riding arena built in an area where it would serve a dual purpose and assist with bushfire management; (b) she relied on the incorrect advice of a professional excavator, Mr Devaney. She has never owned property and due to her upbringing on a cattle property she has had no experience whatsoever with development applications; (c) she is of good character and lacks any prior convictions; (d) her current physical and financial state; (e) her genuine and proactive commitment to regeneration; (f) according to expert advice that she has obtained, the harm to the site is not irreparable and the area is regenerating well; and (g) her open and honest conduct with council officers at every stage of the matter and her early guilty plea. 80 Those factors are, in my view, proper to consider when deciding whether she should have a good behaviour bond, with the possible exception of her physical and financial state which I will assume (without deciding) should be put to one side in that context. Collectively they are weighty. Ms Benson is an inexperienced, trusting young person of the highest character with no prior convictions, who sought and relied on the advice of a very experienced earthmoving contractor, Mr Devaney, that no consent was required for this development. Her reliance on the unqualified advice of such an experienced contractor was reasonable in the circumstances. It is true that on an earlier unrelated occasion an arborist had given her some information (which I accept she does not recall), which might have been expected to put her on inquiry. However, she did in fact enquire of Mr Devaney and it was his incorrect advice that led her into error. In addition, she is remorseful and has done everything possible to try and make amends. In that regard, she consents to an order for a Bushland Restoration Plan as proposed by the prosecutor which I intend to make and which will visit her with a substantial cost which she can ill afford. She would like all her available income, little though it is, to be directed towards that plan rather than to a fine.

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